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In re Fraternal Composite Service

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


January 11, 2008

IN RE: FRATERNAL COMPOSITE SERVICE, INC., DEBTOR.
NATIONAL JUDGMENT RECOVERY, LLC, APPELLANT,
v.
FRATERNAL COMPOSITE SERVICE, INC., APPELLEE.

The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

Bkr. No. 05-61438

Chapter 11

MEMORANDUM-DECISION AND ORDER

Appellee moves (Dkt. No. 5) to dismiss this appeal from an order of Hon. Stephen D. Gerling, Chief United States Bankruptcy Judge. Appellee argues that the appeal should be dismissed for failure to prosecute and/or on the ground of mootness. Appellant has taken no action with respect to this appeal since it filed the Notice of Appeal and Designation of Record more than 10 months ago. Appellant has not filed its brief on the appeal or sought an extension of time, despite this Court's scheduling notice directing that the brief be filed by April 9, 2007. Appellant has submitted no opposition to this motion, nor has it requested further time to do so.

Based on the record, including the affidavit from appellee's counsel regarding the progress of the matter in Bankruptcy Court, this Court finds that appellant has had ample time to prosecute its appeal; that appellee's motion gave appellant clear notice that its failure to proceed could result in dismissal of the appeal; that appellant has had ample time to oppose the motion; that there is no evidence that appellant intends to oppose the motion or prosecute the appeal; and that matters have proceeded in Bankruptcy Court to the point that prejudice to appellee would result if the appeal is not dismissed. Accordingly, the Court in its discretion grants the motion to dismiss for failure to prosecute. Moreover, appellee has demonstrated that the appeal is now moot.

It is therefore

ORDERED that appellee's motion (Dkt. No. 5) to dismiss the appeal is granted; and it is further

ORDERED that the appeal is dismissed.

IT IS SO ORDERED.

20080111

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