Lundahl v. Eves

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS SEP 23 2004
TENTH CIRCUIT PATRICK FISHER
Clerk
In Re: HOLLI LUNDAHL,
Debtor.
HOLLI LUNDAHL,
Plaintiff-Appellant,
No. 04-4040
(BAP No. UT-04-005)
v.
(Utah)
PAUL EVES; JOYLENE EVES;
ROBERT HAMMON; BENLEY
WILSON; CONNIE SMITH JOLLEY;
HIDDEN VALE MGT. CO., INC.;
DOES 1 THROUGH 100,
Defendants-Appellees.
ORDER *
Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
Holli Lundahl, appearing pro se, appeals the order of the United States
Bankruptcy Appellate Panel of the Tenth Circuit (BAP) dismissing her bankruptcy
After examining appellant’s brief and the appellate record, this panel has
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determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G).
appeal for failure to prosecute. The BAP found that Ms. Lundahl neither
designated the record on appeal nor filed a statement of the issues to be raised.
See F ED . R. B ANKR . P. 8006; 10 TH C IR . BAP L.R. 8006-1(b). Furthermore, Ms.
Lundahl failed to file a statement of interested parties. See 10 TH C IR . BAP L.R.
8018-3. Accordingly, the court exercised its authority under F ED . R. B ANKR . P.
8001(a) and 10 TH C IR . BAP L.R. 8018-4 to dismiss the case for failure to
prosecute. We affirm the BAP’s determination that dismissal was warranted and
deny Ms. Lundahl’s motion to proceed in forma pauperis.
On December 24, 2003, the bankruptcy court entered an order dismissing
an adversary proceeding brought by Ms. Lundahl. Ms. Lundahl filed a timely
notice of appeal to the BAP but her notice was not accompanied by the required
filing and docketing fees. She subsequently filed an Application to Proceed
Without Prepayment of Fees, which the court denied.
Within ten days after filing a notice of appeal, an appellant is directed by
Federal Bankruptcy Rule 8006 to file with the clerk of the bankruptcy court a
designation of the items to be included in the record and a statement of the issues
to be presented. F ED . R. B ANKR . P. 8006. BAP Rule 8018-3(f) requires an
appellant to file a statement of interested parties within ten days after notice that
the appeal has been docketed with the BAP, or when a party files a motion with
the BAP, whichever is earlier. The BAP issued a notice that the appeal had been
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docketed and set forth a filing deadline of January 20, 2004, for a statement of
interested parties, a designation of record, and a statement of issues. The
deadline expired and Ms. Lundahl failed to file the required papers.
The BAP sent a Notice of Deficiency and Order to Show Cause, requiring
Ms. Lundahl to: (1) file a statement of interested parties pursuant to 10 TH C IR .
BAP L.R. 8018-3; (2) file a copy of the designation of record in accordance with
Bankruptcy Rule 8006; and (3) file a copy of the statement of issues in
accordance with Bankruptcy Rule 8006. The BAP concomitantly warned Ms.
Lundahl that failure to comport with the court order would result in dismissal of
her appeal. Ms. Lundahl did not respond. Accordingly, the BAP dismissed the
appeal for failure to prosecute. Ms. Lundahl then filed a motion to recall the
BAP’s mandate, which the court denied. This appeal followed.
We review a dismissal for failure to prosecute under an abuse of discretion
standard. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (finding no abuse
of discretion in dismissing pro se bankruptcy appeal for failure to designate
record on appeal, failure to file statement of issues to be raised, and failure to file
timely brief).
The authority of a court to dismiss sua sponte for lack of prosecution
has generally been considered an “inherent power,” governed not by
rule or statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.
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Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). Dismissal for failure to
prosecute should be imposed only after careful exercise of judicial discretion.
See DeBardeleben v. Quinlan, 937 F.2d 502, 504 (10th Cir. 1991). Nonetheless,
dismissal is an appropriate disposition against a party who disregards court orders
and fails to proceed as required by court rules. Nat’l Hockey League v. Metro.
Hockey Club, Inc., 427 U.S. 639, 642-43 (1976).
The BAP had the authority to take action it deemed appropriate, including
dismissal, in response to Ms. Lundahl’s failure to comply with court orders and
the procedures demanded by the Bankruptcy Rules. F ED . R. B ANKR . P. 8001(a).
Ms. Lundahl does not dispute her failure to comply with the applicable rules for
prosecution of her appeal. She has not paid the requisite filing and docketing
fees. The statement of interested parties, designation of record, and statement of
issues have still not been filed. Moreover, Ms. Lundahl concedes that the BAP
effectively warned her of the possibility of dismissal in its issuance of the Notice
of Deficiency and Order to Show Cause on January 22, 2004. Aplt. Br. at 3-4.
Ms. Lundahl’s sole contention before this court is that the BAP’s dismissal
of her appeal is void for want of jurisdiction. She specifically asserts that the
BAP lacked jurisdiction over her appeal because the bankruptcy trial court lacked
jurisdiction to enter the order dismissing the adversary proceeding. Ms.
Lundahl’s jurisdictional argument fails. Pursuant to 28 U.S.C. § 158(a), the BAP
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had jurisdiction over Ms. Lundahl’s appeal. The bankruptcy court’s order
disposed of her adversary proceeding and is a final order subject to appeal. 28
U.S.C. § 158(a)(1). Likewise, Ms. Lundahl consented to the BAP’s jurisdiction
by filing a timely notice of appeal and failing to elect to have the appeal heard by
a district court. 28 U.S.C. § 158(c)(1); F ED . R. B ANKR . P. 8001; 10 TH C IR . BAP
L.R. 8001-1. In sum, the BAP had jurisdiction over Ms. Lundahl’s appeal.
Pro se parties must follow the applicable rules of federal procedure. Hunt
v. Uphoff, 199 F.3d 1220, 1223 (10th Cir. 1999); Nielsen, 17 F.3d at 1277. The
BAP did not abuse its discretion in dismissing Ms. Lundahl’s appeal.
For the reasons stated above, we DENY Ms. Lundahl’s motion to proceed
in forma pauperis and AFFIRM the BAP’s dismissal for failure to prosecute.
ENTERED FOR THE COURT
Stephanie K. Seymour
United States Circuit Judge
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