Taal v . S t . Marys Bank et a l . CV-13-194-PB 8/5/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Baboucar B . Taal

v. Case N o . 13-cv-194-PB Opinion N o .

St. Mary's Bank, Discover Bank, and Niederman, Stanzel & Lindsey

MEMORANDUM AND ORDER

Baboucar Taal appeals from a Bankruptcy Court ruling

dismissing his Chapter 13 petition. Taal filed his brief more

than a month late. The brief is largely unintelligible and

fails to comply with Federal Rule of Bankruptcy Procedure

8010(a)(1). Appellee S t . Mary’s Bank (“SMB”) has moved to

strike Taal’s brief and dismiss his appeal. I determine that:

(1) Taal’s untimely filing was the result of excusable neglect;

(2) his brief must nevertheless be stricken because it is

unintelligible and fails to comply with Bankruptcy Court Rules;

and (3) Taal will be given 14 days to file a brief that clearly

sets forth his appellate arguments and complies with Rule

8010(a)(1). Accordingly, I grant in part and deny in part SMB’s

motion to strike and dismiss. (Doc. N o . 2 1 . ) 1

Taal asserts that SMB’s motion is a nonconforming document that I. PROCEDURAL BACKGROUND

Taal filed a notice of appeal from a bankruptcy court

decision on April 23, 2013. Doc. No. 1. On May 2, 2013, he

filed a “Motion to Amend / Alter ‘Motion to Stay Pending Appeal’

Order,” Doc. No. 9, which I denied on May 21, 2013. See

Endorsed Order dated May 2 1 , 2013. On May 2 0 , 2013, Taal filed

a Motion to Compel Production of Discovery. Doc. N o . 1 2 . I

denied that motion on June 2 4 , 2013. See Endorsed Order dated

June 2 4 , 2013. Taal finally submitted his appeals brief, Doc.

N o . 1 8 , on June 2 8 .

On July 3 , SMB filed a motion to strike Taal’s brief and

dismiss the case for failure to comply with the briefing

schedule in Rule 8009 or the briefing requirements set out in

Rule 8010. See Fed. R. Bankr. P. 8009, 8010; Doc. N o . 2 1 . NSL

and Discover Bank joined SMB’s motion to strike and dismiss.

violates Local Rule 7.1(a)(1) because it seeks two forms of relief. Taal is incorrect. Although that Rule states that “[f]ilers shall not combine multiple motions seeking separate and distinct relief into a single filing,” when one form of relief ordinarily follows from another form of relief, it does not violate the Rule to seek both forms of relief in a single motion. Here, where SMB requests an order striking appellant’s brief, and dismissal of the case would ordinarily follow that relief, the document is not considered a nonconforming document. 2 Doc. Nos. 2 3 , 3 0 . Taal neither filed a response, nor offered

any explanation for his failure to timely file a brief.

II. STANDARD OF REVIEW

This court has jurisdiction to hear appeals from final

judgments, orders, and decrees issued in bankruptcy court

pursuant to

(a)(1). Generally, when reviewing a

decision by a bankruptcy court, the district court upholds

findings of fact unless they are clearly erroneous, and reviews

legal conclusions de novo. Fed. R. Bankr. P. 8013; Palmacci v .

Umpierrez,

8 1 , 785 (1st Cir. 1997); Askenaizer v .

Moate,

4 4 , 447 (D.N.H. 2009). In this case, however,

the appellees responded to Taal’s appeal by raising the

threshold argument that the appeal should be dismissed for

failure to comply with the briefing schedule and briefing

requirements in the Bankruptcy Rules. Because I strike Taal’s

brief for failure to comply with Rule 8010(a), I do not address

the merits of his appeal. See Hermosilla v . Hermosilla,

6 1 , 664 (D. Mass. 2011).

3 III. ANALYSIS

The briefing schedule for a bankruptcy appeal to a federal

district court is established by law. See Fed. R. Bankr. P.

8009. According to Rule 8009, an appellant has fourteen days

after filing a notice of appeal within which to file a

supporting brief. Id. at 8009(a)(1). Taal’s appeal was entered

on the docket on April 2 4 , 2013. See Doc. N o . 1 . Thus, his

brief should have been filed by May 8 , 2013. See Fed. R. Bankr.

P. 8009(a)(1). Taal failed to meet that deadline and, instead,

filed an untimely brief on June 2 8 , 2013. See Doc. N o . 1 8 .

Untimely filing of a supporting brief permits but does not

require dismissal of a bankruptcy appeal. See Hermosilla,

(noting that the First Circuit has not issued a

decision directly on point, but that “most other courts in the

First Circuit believe that the decision to dismiss bankruptcy

appeals for failure to comply with Rule 8009 is discretionary”

and collecting cases in support); see also In re Truong,

6 0 , 261 (2d Cir. 2009) (“[D]istrict courts should

exercise their discretion and determine whether dismissal is

appropriate where a party fails to comply with this rule.”).

To determine whether to accept a late filed brief, a court

4 considers whether “the failure to act was the result of

excusable neglect.” Fed. R. Bankr. P. 9006(b)(1); see Pioneer

Inv. Servs. C o . v . Brunswick Assocs. Ltd.,

8 0 , 383

(1993) (noting that “Rule 9006 is a general rule governing the .

. . enlargement . . . of periods of time prescribed in other

bankruptcy rules”). “The burden of proving excusable neglect

lies with the late-claimant.” Jones v . Chemetron Corp.,

(3d Cir. 2000); see In re Enron Corp.,

(2d Cir. 2005); Hanson v . First Bank of S.D., N.A.,

(8th Cir. 1987); In re Moretti,

0 2 ,

608 (B.A.P. 1st Cir. 2001).

To demonstrate “excusable neglect,” an appellant must first

demonstrate that his filing was delayed due to “neglect.” See

Pioneer,

(stating that “neglect” “encompasses

both simple faultless omissions to act and . . . omissions

caused by carelessness”). The appellant must then demonstrate

that his neglect was “excusable.” Id. at 395. Courts consider

a variety of factors in assessing whether a late-claimant’s

neglect was excusable, 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

5 whether it was within the reasonable control of the movant, and

whether the movant acted in good faith.” Pioneer,

; Graphic Commc’ns Int’l Union, Local 12-N v . Quebecor

Printing Providence, Inc.,

, 5 (1st Cir. 2001).

Considering the Pioneer factors, and mindful that pro se

pleadings are to be “liberally construed,” Estelle v . Gamble,

7 , 106 (1976), I decline to dismiss Taal’s appeal for

failure to timely file a supporting brief. SMB does not argue

that it has been prejudiced by the late filing, and I discern no

prejudice. The length of the filing delay was only one month.

Cf. In re Braniff Airways, Inc.,

, 1304-05 (5th

Cir. 1985) (upholding district court’s dismissal of a bankruptcy

appeal where, after nineteen months, appellant still had not

filed a brief); In re Tampa Chain Co.,

4 , 55 (2d Cir.

1987) (upholding district court’s dismissal of bankruptcy appeal

for failure to prosecute where the debtor failed to file a brief

for seven months and failed to explain w h y ) . The delay in this

case has not impacted the proceedings. Although Taal has not

attempted to explain the delay, after reviewing the record

generously, it appears that Taal believed his motion to

amend/alter motion to stay pending appeal, Doc. N o . 9, and his

6 motion to compel discovery, Doc. N o . 1 2 , tolled the time period

for filing a brief in support of his appeal, since he filed his

brief, Doc. N o . 18 (dated June 2 8 , 2013), just four days after I

denied the latter motion. See Endorsed Order denying Motion to

Compel dated June 2 4 , 2013. Finally, I see no evidence of bad

faith on Taal’s part in failing to timely file his brief.

Thus, I conclude that Taal’s untimeliness does not warrant

dismissal.

As SMB notes, however, there is a second problem with

Taal’s filing: it is unintelligible and fails to comply with

Rule 8010(a)(1), which lists the elements of an adequate brief.

See Fed. R. Bankr. P. 8010(a)(1). Rule 8010(a)(1) states that

an appellant’s brief must contain the following sections, set

out in the following order:

1- A table of contents, with page references; 2- A table of cases cited in the brief, listed alphabetically, with references to the pages of the brief on which they are cited; 3- A list of statutes and other authorities cited in the brief, with references to the pages of the brief on which they are cited; 4- A statement of the basis of appellate jurisdiction; 5- A statement of the issues presented for review; 6- A statement of the applicable standard of appellate review; 7- A statement of the case, that explains: the nature of the case, its procedural history, and the bankruptcy court’s rulings;

7 8- A statement of facts that are relevant to the issues on appeal, with references to the bankruptcy court record; 9- An argument section: The contentions the appellant wishes to make, supported by legal arguments and citations to legal authorities; and 10- A conclusion that indicates the relief the appellant is seeking.

See

Taal’s brief does not come close to satisfying these

requirements, and I am accordingly unable to determine what

issues he is seeking to appeal. Thus, I grant SMB’s motion to

strike the brief without prejudice to Taal’s right to file a new

brief within fourteen days that conforms to Rule 8010(a)(1). I

deny SMB’s motion to the extent it seeks dismissal of Taal’s

appeal.

IV. CONCLUSION

For the foregoing reasons, I grant in part and deny in part

SMB’s motion to strike and dismiss. (Doc. N o . 21.) I deny

appellant’s motion for leave to file brief, (Doc. N o . 1 9 ) ,

appellees’ motions to extend time to respond to appellant’s

brief (Doc. Nos. 28 and 3 1 ) , and appellant’s motion for leave to

file reply brief (Doc. N o . 34) as moot. If the appellant

submits a revised brief within fourteen days, as permitted by

8 this Order, the parties shall thereafter follow the briefing

schedule established by Rule 8009. 2

SO ORDERED.

Paul Barbadoro United States District Judge

August , 2013

cc: Baboucar B . Taal, pro se Gregory T . Uliasz, Esq. Adam Zlotnick, Esq. Jay M . Niederman, Esq. Lawrence P. Sumski, Esq. Geraldine L . Karonis, Esq.

2 Appellees NSL and Discover Bank sought to join SMB’s motion to strike and dismiss. See Doc. Nos. 2 3 , 3 0 . They, too, will have an opportunity to respond if Taal submits a new brief. Their briefs, Doc. Nos. 3 2 , 3 3 , are stricken. 9