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Javino v. Pergament

United States District Court, E.D. New York

April 30, 2014

DALE ROBERT JAVINO, Appellant,
v.
MARC A. PERGAMENT, Appellee.

ORDER

SANDRA J. FEUERSTEIN, District Judge.

On December 23, 2013, pro se appellant Dale Robert Javino ("appellant") filed in the United States Bankruptcy Court for the Eastern District of New York ("the bankruptcy court") a notice of appeal from: (1) an order of the bankruptcy court (Trust, U.S.B.J.), dated December 10, 2013, imposing additional sanctions against him in the sum of eight thousand one hundred twenty-eight dollars and twenty cents ($8, 128.20) for the Trustee's reasonable attorney's fees and costs incurred in filing a Motion to Void Deed and Impose Sanctions and a Motion for Contempt and in appearing at the hearings on those motions, and the judgment of the bankruptcy court, entered December 17, 2013, upon that order; and (2) a judgment against him in the sum of five thousand dollars ($5, 000.00), entered in the bankruptcy court on December 17, 2013.[1] However, appellant did not file the requisite Designation and Statement with the bankruptcy court in accordance with Rule 8006 of the Federal Rules of Bankruptcy Procedure ("the Bankruptcy Rules"), nor did he ever seek an extension of time to do so. Accordingly, the notice of appeal and an "Incomplete Record on Appeal" were transmitted to this Court on February 10, 2014.

On February 12, 2014, the Clerk of the Court served appellant with a "Notice of Docketing Bankruptcy Appeal" in accordance with Rule 8007(b) of the Bankruptcy Rules, advising appellant, inter alia, that the appeal was docketed on February 12, 2014 and that his appellate brief and appendix must be filed and served in accordance with Rule 8009 of the Bankruptcy Rules and/or the Individual Judge's Court Rules. (Doc. No. 2). Rule 8009(a)(1) of the Bankruptcy Rules provides that "[t]he appellant shall serve and file a brief within fourteen (14) days after entry of the appeal on the docket pursuant to Rule 8007." Thus, appellant was required to serve and file his brief on the appeal on or before February 26, 2014, To date, appellant has neither filed a brief on the appeal, nor sought an extension of time to do so.

On April 2, 2014, the Court issued an order to show cause: (1) directing appellant to file an affidavit with the Court on or before April 16, 2014 indicating why this appeal should not be dismissed with prejudice pursuant to Rule 8001(a) of the Bankruptcy Rules for his failure to comply with Rules 8006 and 8009(a)(1) of the Bankruptcy Rules;[2] and (2) advising appellant that his failure to file an affidavit in accordance with that order to show cause would result in this appeal being dismissed with prejudice pursuant to Rule 8001(a) of the Bankruptcy Rules without further notice. The Clerk of the Court mailed a copy of the order to show cause to appellant at his last known address on April 2, 2014. (Doc. No. 3).

By order dated April 28, 2014, this appeal was sua sponte dismissed in its entirety with prejudice pursuant to Rule 8001(a) of the Bankruptcy Rules based upon appellant's seeming failure to comply with the April 2, 2014 order to show cause, to seek an extension of time to do so or to otherwise demonstrate excusable neglect for his failure to comply with Rules 8006 and 8009(a)(1) of the Bankruptcy Rules. The order indicated, in relevant part, that although the Trustee indicated that he had received an affidavit from appellant in response to the order to show cause, (Doc. No. 4), appellant never filed that affidavit, nor any other response to the order to show cause, with the Court. However, appellant did, in fact, file an affidavit in response to the order to show cause on April 16, 2014, but, due to an apparent clerical error, that affidavit was not docketed until April 29, 2014. Accordingly, the April 28, 2014 order of this Court is hereby vacated.

Nonetheless, in his affidavit, appellant sets forth numerous arguments regarding the purported merits of his appeal, i.e., what the bankruptcy court purportedly did wrong and why the Trustee's conduct during the bankruptcy proceeding was allegedly improper, but indicates only one possible reason for his failure to comply with Rules 8006 and 8009(a)(1) of the Bankruptcy Rules or to seek an extension of time to do so, i.e., that he has "been consumed in a [sic] another important matter, Visitation of [his] daughter * * *." (Javino Aff. at 1).

Since appellant has not demonstrated excusable neglect for his failure to comply with Rules 8006 and 8009(a)(1) of the Bankruptcy Rules, see Rule 9006(b)(1) of the Bankruptcy Rules, and for the reasons set forth in the April 2, 2014 order to show cause, this appeal is dismissed in its entirety pursuant to Rule 8001(a) of the Bankruptcy Rules. See In re Lynch, 430 F.3d 600, 605 (2d Cir. 2005) (holding that if an appellant who did not timely file the mandatory Designation and Statement pursuant to Rule 8006 of the Bankruptcy Rules does not meet the conditions of Rule 9006(b)(1) of the Bankruptcy Rules, i.e., he does not demonstrate excusable neglect, his appeal cannot proceed). The Clerk of the Court shall close this case.

SO ORDERED.


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