Javino v. Pergament (In Re Am. Land Acquisition Corp.)

14-1923-bk
In Re: Am. Land Acquisition Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 22nd day of April, two thousand fifteen.
PRESENT:
RALPH K. WINTER,
JOHN M. WALKER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
In Re: American Land Acquisition Corporation,
Debtor.
_____________________________________
Dale Robert Javino,
Appellant,
v. 14-1923-bk
Marc A. Pergament, Chapter 7 Trustee of the
Estate of American Land Acquisition
Corporation,
Appellee.
_____________________________________
FOR APPELLANT: Dale Robert Javino, pro se, Center Moriches, NY.
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FOR APPELLEE: Marc A. Pergament (Seth M. Choset, Marc J.
Weingard, on the brief), Weinberg, Gross &
Pergament LLP, Garden City, NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Feuerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Dale Robert Javino, proceeding pro se, appeals the district court’s dismissal of
his bankruptcy appeal for failure to comply with the Federal Rules of Bankruptcy Procedure (the
“Bankruptcy Rules”), or to demonstrate excusable neglect for his noncompliance. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.
We review for abuse of discretion a district court’s dismissal of a bankruptcy appeal on
non-jurisdictional procedural grounds, including its determination that a party has failed to
establish excusable neglect for its procedural noncompliance. See Lynch v. United States (In re
Lynch), 430 F.3d 600, 603 (2d Cir. 2005) (per curiam); Balaber-Strauss v. Reichard (In re Tampa
Chain Co.), 835 F.2d 54, 55 (2d Cir. 1987) (per curiam).
We conclude that the district court did not abuse its discretion in dismissing Javino’s
appeal, and we affirm substantially for the reasons set forth in the district court’s order of dismissal
dated April 30, 2014. Javino v. Pergament, No. 14 CV 0891 (SJF), 2014 WL 1761546 (E.D.N.Y.
Apr. 30, 2014). This Court has held that, because the filing of a designation of the record on
appeal and statement of issues to be presented is mandatory, an appeal “cannot proceed” unless the
failure to timely comply with the filing requirement resulted from excusable neglect. Lynch, 430
F.3d at 603; see also id. at 605 (“If a party fails to file a Designation and Statement on time, and an
untimely filing is disallowed because no excusable neglect has been shown, the appeal has to be at
an end.”). In response to the district court’s order to show cause, Javino offered only a cursory
reference to visitation issues with respect to his daughter, and the district court found that this
explanation failed to establish excusable neglect. Though Javino appeals from that
determination, he does not address the merits of the district court’s ruling, instead raising various
challenges to the course of the bankruptcy proceedings more generally. Those issues are not
currently before this Court. We find no basis to conclude that the district court abused its
discretion in (1) determining that Javino failed to establish excusable neglect and (2) dismissing
the appeal on that basis.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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