United States District Court, S.D. New York
October 13, 2004.
IN RE: NICHITA MARIUS BUCURESCU and DOINA M. BUCURESCU, Debtors. NICHITA MARIUS BUCURESCU and DOINA M. BUCURESCU, Appellants,
LAWRENCE FARKAS, JEFFREY FARKAS and 190A REALTY CORP., Appellees.
The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge
Appellees move to dismiss the appeal filed by pro se
appellants Nichita Marius Bucurescu and Doina M. Bucurescu, from
an Order of the United States Bankruptcy Court for the Southern
District of New York (Blackshear, J.) dated February 6, 2004,
dismissing appellants' Chapter 7 proceeding with prejudice. For
the following reasons, appellees' motion to dismiss is granted.
The history of this case is clearly set out in Judge Kaplan's
opinion of August 19, 2002. In re Nichita Bucurescu,
282 B.R. 124, 132-34 (S.D.N.Y. 2002) (vacating and remanding Judge
Blackshear's March 26, 2002 order for failure to give notice and
hold a hearing before dismissing appellants' Chapter 7 proceeding
with prejudice). There was no activity in the case from the date
of remand until October 29, 2003, when appellees served notice of
their motion to dismiss. Judge Blackshear scheduled a hearing for
January 14, 2004. Despite Judge Blackshear's finding that
appellants had adequate notice of the hearing, appellants failed
to appear. By order of February 6, 2004, Judge Blackshear
dismissed appellants' Chapter 7 proceeding with prejudice, based
upon several findings, including, "unreasonable delay and/or lack
of good faith by the Debtors."
Appellants filed a timely appeal that was entered on the docket of this court on May 10, 2004. Pursuant to Federal
Bankruptcy Rule 8009, appellants were required to file a brief in
support of their appeal by May 25, 2004. No such brief was filed.
At an initial conference on June 29, 2004, the attorney for
appellees indicated that he planned to move promptly to dismiss
the appeal on the ground that appellants had failed to file a
brief. I explained to appellants that they should begin working
on their opposition to the intended motion immediately, and
ordered them to submit a brief in support of their appeal if they
had not already done so.
On July 12, 2004, appellees filed this motion to dismiss the
appeal due to appellants' failure to file a brief, and, in
accordance with my individual rules, requested a return date of
August 5, 2004. Appellants failed to file any opposition to the
motion by the July 28, 2004 deadline, however, on July 29, 2004,
appellants filed a motion to disqualify me from presiding over
this matter. That motion was denied and appellants were given an
additional two weeks to oppose the motion. Bucuresecu v. Farkas
& 190A Realty Corp., 04 Civ. 3545, 2004 WL 2064864 (S.D.N.Y.
Sept. 15, 2004). On September 30, 2004, appellants filed what
purports to be their opposition to appellees' motion to dismiss,
but which contains no legal or factual grounds on which
appellees' motion might be denied. More importantly, despite my
order to do so at the initial conference, and the grant of yet a further extension, appellants have still failed to file a brief
in support of their appeal.
A district court has jurisdiction to review an appeal from a
bankruptcy court decision pursuant to 28 U.S.C. § 158. Unless the
district court excuses the filing of briefs or sets a different
time limit, "the appellant shall serve and file a brief within 15
days after entry of the appeal on the docket." Fed.R.Bankr.P.
8009. The time limitations imposed by Rule 8009 are not
jurisdictional, and therefore, "the district court is not
required automatically to dismiss the appeal of a party who has
failed to meet those deadlines." In re Tampa Chain Co.,
835 F.2d 54, 55 (2d Cir. 1987). Rather, where the appellants' failure
to file a brief is at issue, the district court "should exercise
discretion to determine whether dismissal is appropriate in the
circumstances," such as where the appellant has acted in bad
faith, negligently, indifferently or with dilatoriness. Id.;
In re Futterman, No. 99 Civ. 8793, 2001 WL 282716, at *3
(S.D.N.Y. Mar. 21, 2001). On motion after the expiration of the
relevant deadline, the court may permit late filing "where the
failure to act was the result of excusable neglect."
Fed.R.Bankr.P. 9006(b)(1). A court should consider all relevant
circumstances when applying the "excusable neglect" standard,
including "the danger of prejudice to the debtor, the length of the delay and
its potential impact on judicial proceedings, the reason for the
delay, including whether it was in the reasonable control of the
movant, and whether the movant acted in good faith." Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380,
Appellants are now four months past the deadline set for filing
their brief. Although appellants proceed pro se, they were
specifically ordered to file a brief in support of this appeal at
the June 29, 2004 conference. Moreover, they are quite familiar
with the brief requirement as this is at least their third appeal
to this court from an order of the bankruptcy court. See In re
Nichita Bucurescu, 01 Civ. 2799, 2003 WL 21297282 (S.D.N.Y. June
4, 2003) (dismissing appellants' prior appeal for the very reason
that they inexcusably failed to file a brief).
Appellants make conflicting statements in their opposition to
this motion. They admit that they were ordered to file a brief
and have not done so, stating: "the Judge suggested or demanded
to prepare a BRIEF, NO MATTER THE APPEAL WILL BE GONE," and "we
choose to have a JURY TRIAL. If the Judge opposing, should give
time to file a Brief." However, appellants also state that it is
untrue that they have failed to file a brief because their brief
is part of the record on appeal. Any confusion as to whether a
brief filed in support of a prior appeal would fulfill this appeal's brief requirement was
clarified by my explicit instructions, at the June 29, 2004
conference, that appellants are required to file a brief in
support of this appeal. No brief was included in the record on
appeal, filed with this court, or served on appellees. As was
also explained to appellants at the June 29, 2004 conference, and
again in my September 15, 2004 opinion, juries do not decide
appeals. In light of these prior explanations, the June 29, 2004
order to file a brief, and the additional extension of time,
appellants' failure to file a brief within the last four months
is in bad faith.
Even if appellants' opposition to this motion could be
construed as a motion to permit a late filing, it is clear that
appellants' failure to file is not the product of excusable
neglect. First, appellants' failure to follow my order is
evidence of bad faith. Second, appellants have had three separate
opportunities to explain their failure to file, but have instead
chosen to do little else than lash out at opposing counsel and
the court. Third, the prejudice to appellees is significant.
Appellants have been in and out of bankruptcy for seven years. By
these tactics, they have prevented appellees from enforcing a
judgment entered in 1997. It is apparent that appellants have
been deliberately dilatory in their failure to file a brief in
support of their appeal. That failure is not the product of excusable neglect. Accordingly, appellees' motion to
dismiss is granted.
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