International Business Property

FILED
NOT FOR PUBLICATION MAY 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In re: INTERNATIONAL BUSINESS No. 09-60041
PROPERTIES,
BAP No. 08-01129-MoHD
Debtor,
ARTHUR G. LAWRENCE, partner of MEMORANDUM *
International Business Properties and as an
Individual,
Appellant,
v.
COUNTY OF RIVERSIDE; TOM
MULLEN; CATHEDRAL CITY;
CATHEDRAL CITY
REDEVELOPMENT AGENCY,
Appellees,
UNITED STATES TRUSTEE,
Trustee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Hollowell, Montali and Dunn, Bankruptcy Judges, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted May 3, 2011 **
Pasadena, California
Before: PREGERSON, FISHER and BERZON, Circuit Judges.
Arthur G. Lawrence appeals the Bankruptcy Appellate Panel’s (BAP)
dismissal of his appeal for failure to prosecute and the BAP’s denial of his motions
for reconsideration. We have jurisdiction under 28 U.S.C. § 158(d), we review for
an abuse of discretion, see In re Morrissey, 349 F.3d 1187, 1190 (9th Cir. 2003),
and we affirm.
Lawrence received repeated warnings from the BAP that his appeal would
be dismissed if he failed to prosecute. He received warnings in two briefing orders
in June 2008 and April 2009. In a separate April 2009 order, the BAP said that,
“Given the age of these appeals, the parties have had sufficient time to prepare
their arguments”; the order also warned that “Requests for extension of time will
not be viewed favorably.” In a May 2009 order, the BAP warned Lawrence that
his continued failure to comply with his obligation to designate the record “may
result in dismissal of the appeal or summary affirmance of the bankruptcy court’s
decision.” And in another May 2009 order, the BAP granted Lawrence an
extension of time in which to file his opening brief with the clear admonition that:
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
“If Mr. Lawrence does not file and serve his opening brief and excerpts by
FRIDAY, JUNE 12, 2009, his appeal . . . will be DISMISSED for failure to
prosecute without further notice to the parties” (emphasis added). Indeed,
Lawrence understood and accepted that no more extensions would be given
beyond June 12, 2009: in his May 2009 request to extend the deadline for
designating the record until June 12, he wrote that he was asking for a “final
extension . . . for the filing of the opening brief and the other documents required to
be filed in this appeal” (emphasis added). Lawrence nonetheless failed to file
either his opening brief or the designation of record on June 12, instead filing a
motion for a lengthy, three-month extension.
The BAP gave sound reasons for the dismissal, and Lawrence has not
rebutted them. The BAP noted correctly that the appeal had been pending for 14
months and that Lawrence therefore had had “ample time to prepare his opening
brief.” Although the briefing schedule was suspended for a time pending final
action in the bankruptcy court, Lawrence had “known since May 2008 that his
brief would ultimately be due.” The BAP also noted correctly that, “while unable
to prepare a brief for this appeal,” Lawrence had been “able to file his opening
brief” in another appeal. It makes no difference whether Lawrence filed the brief
in the related case on his own or with the help of others.
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Accordingly, we hold that the BAP did not abuse its discretion by
dismissing Lawrence’s appeal for failure to prosecute and by denying his motions
for reconsideration. Because we affirm the BAP’s dismissal, we do not consider
Lawrence’s challenges to the bankruptcy court’s decisions. See Morrissey, 349
F.3d at 1190.
Lawrence’s motions for judicial notice and to augment the record on appeal
are denied as moot.
AFFIRMED.
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