Reed Slatkin v. R. Neilson

FILED
NOT FOR PUBLICATION JUN 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In the Matter of: REED E. SLATKIN, No. 09-55759
Substantively Consolidated Affilates
TOPSIGHT OREGON, INC. and REED D.C. No. 2:08-cv-03358-RSWL
SLATKIN INVESTMENT CLUB, L.P.
(Reorganized Debtors),
MEMORANDUM *
Debtor.
DONALD L. SIMONS, and KAREN A.
SIMONS, a.k.a Karen Ritz,
Appellants,
v.
R. TODD NEILSON, Trustees of the
Chapter 11 Bankruptcy Estate of Reed E.
Slatkin,
Appellee.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Donald L. and Karen A. Simons appeal from the district court’s order
dismissing their appeal from the bankruptcy court’s summary judgment against
them in an adversary proceeding. We have jurisdiction pursuant to 28 U.S.C.
§ 158(d). We review for an abuse of discretion the dismissal of an appeal for
failure to prosecute, Nat’l Bank of Long Beach v. Donovan (In re Donovan), 871
F.2d 807, 808 (9th Cir. 1989), and we reverse and remand.
The district court dismissed sua sponte after the Simonses failed to timely
file documents in support of their appeal. However, the Simonses had requested a
short extension to file their opening brief, the court failed to warn of dismissal or to
consider less drastic sanctions, and there was no showing of prejudice to the
appellee. Thus, we reverse and remand. See id. at 808-09 (concluding that
dismissal of appeal was an abuse of discretion where Bankruptcy Appellate Panel
failed to consider alternative sanctions); Moneymaker v. CoBen (In re Eisen), 31
F.3d 1447, 1451 (9th Cir. 1994) (explaining five factors courts must consider
before dismissal, including prejudice to opposing party and alternative sanctions,
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 09-55759
and noting that in sua sponte dismissals “there is a closer focus on the failure to
consider less drastic alternatives and the lack of warning of imminent dismissal”
(internal quotation marks and citation omitted)).
REVERSED and REMANDED.
3 09-55759