United States District Court, S.D. New York
IN RE 199 EAST 7TH STREET LLC, Debtor.
U.S. TRUSTEE ALBERT TOGUT, Appellee. DAVID CARLEBACH, Appellant,
OPINION & ORDER
ABRAMS, United States District Judge.
David Carlebach, an attorney proceeding pro se,
appeals several orders of the United States Bankruptcy Court
for the Southern District of New York. Appellee William K.
Harrington, United States Trustee, moves to dismiss this
appeal for failure to comply with Federal Rule of Bankruptcy
Procedure 8009(a). For the reasons set forth below, the
Trustee's motion is granted.
January 25, 2017, Carlebach filed this appeal. See
Dkt. 1. Carlebach appeals three orders of the bankruptcy
court: (1) a January 18, 2017 decision and order directing
the United States Marshals to take him into custody until he
purges a civil contempt order; (2) a January 19, 2017 order
denying his motion to quash a subpoena; and (3) a January 19,
2017 order denying his motion to vacate a prior order.
See Dkt. 1. Carlebach has not filed a designation of
items to be included in the record on appeal and a statement
of issues presented (a "Designation and
Statement"), as required by Rule 8009(a).
March 21, 2017, the Trustee moved "for an order to show
cause for an order dismissing this bankruptcy appeal, "
on the basis of Carlebach's failure to file a Designation
and Statement. See Dkt. 13. On March 28, 2017, the
Court ordered Carlebach to show cause, by April 5, 2017, why
this appeal should not be dismissed for failure to comply
with Rule 8009(a). See Dkt. 15. Carlebach did not
respond to the Court's order. On April 7, 2017, the
Trustee submitted a letter again requesting that the Court
dismiss the appeal. See Dkt. 18.
Rule 8009(a), an appellant "must file with the
bankruptcy clerk and serve on the appellee a designation of
the items to be included in the record on appeal and a
statement of the issues to be presented . . . within 14 days
after: (i) the appellant's notice of appeal as of right
becomes effective under Rule 8002; or (ii) an order granting
leave to appeal is entered." Fed.R.Bankr.P. 8009(a)(1).
Rule 8003(a)(2) authorizes a district court to "act as
it considers appropriate, including dismissing the appeal,
" where an appellant "fail[s] to take any step
other than the timely filing of a notice of appeal."
Fed.R.Bankr.P. 8003(a)(2). If an appellant fails to file a
Designation and Statement on time, he must demonstrate
"excusable neglect" to avoid dismissal of his
appeal. See Lynch v. United States (In re Lynch),
430 F.3d 600, 603 (2d Cir. 2005) (per curiam); see also,
e.g., Coe v. MF Glob. Holdings Ltd. (In re MF Glob.
Holdings Ltd.), No. 17-CV-167 (GHW), 2017 WL
744603, at *1 (S.D.N.Y. Feb. 23, 2017); Helen-May
Holdings, LLC v. Geltzer, No. 13-CV-6643 (RJS), 2013 WL
12080931, at *2 (S.D.N.Y. Dec. 6, 2013), aff'd,
582 F.App'x 61 (2d Cir. 2014) (summary
determining whether a party has demonstrated excusable
neglect, courts consider four factors identified by the
Supreme Court in Pioneer Investment Services Co. v.
Brunswick Associates Limited Partnership, 507 U.S. 380,
395 (1993): " the danger of prejudice to the
[non-movant],  the length of the delay and its potential
impact on judicial proceedings,  the reason for the delay,
including whether it was within the reasonable control of the
movant, and  whether the movant acted in good faith."
Id.; see also, e.g., Midland Cogeneration Venture Ltd.
P'ship v. Enron Corp. (In re Enron Corp.), 419 F.3d
115, 122 (2d Cir. 2005); Rode v. ResCap Borrower Claims
Tr. (In re Residential Capital, LLC), No. 16-CV-8549
(GHW), 2016 WL 7477558, at *2 (S.D.N.Y. Dec. 28, 2016). The
Second Circuit has '"taken a hard line' in
applying the Pioneer test." In re Enron
Corp., 419 F.3d at 122 (quoting Silivanch v.
Celebrity Cruises, Inc., 333 F.3d 355, 368 (2d Cir.
2003)). While '"three of the Pioneer
factors'-the length of the delay, the danger of
prejudice, and the movant's good faith-'usually weigh
in favor of the party seeking the extension, '" the
Second Circuit has '"focused on the third factor:
the reason for the delay, including whether it was within the
reasonable control of the movant.'" Id.
(alteration omitted) (quoting Silivanch, 333 F.3d at
366). "[T]he equities will rarely if ever favor a party
who fails to follow the clear dictates of a court rule,
" and "where the rule is entirely clear ... a party
claiming excusable neglect will, in the ordinary course, lose
under the Pioneer test." Id. at 123
(alteration omitted) (quoting Silivanch, 333 F.3d at
failure to comply with Rule 8009 warrants dismissal of this
appeal. Carlebach has provided no reason for his failure to
file a Designation and Statement, leaving the Court with no
basis for finding that that this delay was "within [his]
reasonable control." In re Enron, 419 F.3d at
122; see In re Residential Capital, LLC, No.
16-CV-8549 (GHW), 2016 WL 7477558, at *3 (finding that an
appellant "cannot show excusable neglect" for
failing to file a brief after making "no submissions in
response to the Court's order to show cause" and
providing "no information regarding the reason for
Appellant having missed the deadline"). The filing
requirement of Rule 8009(a) is "quite clear."
In re Lynch, 430 F.3d at 604 (citing Rule 8006, the
predecessor to Rule 8009). So too was the Court's order
to show cause, which specifically stated that Carlebach was
required to submit a Designation and Statement under Rule
8009(a)(1) and that his failure to do so, or to show cause
why he had not, would result in dismissal of this appeal.
See Dkt. 15. Nonetheless, Carlebach failed to make
any responsive submissions. Carlebach's failure to
provide any reason for his delay in filing in a Designation
and Statement or responding to the Court's order to show
cause weighs strongly against a finding of excusable
remaining Pioneer factors do not tip the balance in
Carlebach's favor. The "length of the delay" is
significant: Carlebach's Designation and Statement are
now overdue by more than three months. Pioneer, 507
U.S. at 395; see, e.g., Alphas v. Pereira (In re The
Alphas Co. of N.Y. Inc.), No. 15-CV-l 106 (LGS), 2016 WL
347341, at *3 (S.D.N.Y. Jan. 27, 2016) (finding that an
appellant's delay of approximately three months in filing
a Designation and Statement was not the result of excusable
neglect); Burton v. Schachter (In re Burton), 316
B.R. 138, 140 (S.D.N.Y. 2004) (finding that an appellant
failed to demonstrate excusable neglect for failing to file a
Designation and Statement, where the delay lasted three and
one-half months). Even if Carlebach acted in good faith and
even if the prejudice resulting from his delay were minimal,
he has not demonstrated excusable neglect for his failure to
file a Designation and Statement in this appeal. See In
re Enron Corp., 419 F.3d at 122-23., Because Carlebach
has failed to show excusable neglect, the Court would not
permit the late filing of a Designation and Statement.
See In re Lynch, 430 F.3d at 605. And since "a
bankruptcy appeal cannot proceed without a Designation and
Statement, " this appeal "has to be at an
foregoing reasons, the Trustee's motion to dismiss this
appeal is granted. The Clerk of Court is ...