Opinion
No. C-08-03563 RMW, [Re Docket Nos. 8, 14].
January 21, 2009
ORDER GRANTING EXTENSION OF TIME TO FILE APPEAL BRIEF
Debtor Corrina Curiel Lona appeals from a bankruptcy court order after trial overruling Lona's objection to appellee Jose Abreu dba Intertel Communications claim against her in the amount of $439,000. Shortly after beginning the appellate process, Lona decided to represent herself. See Docket No. 3 (Aug. 4, 2008). This change in counsel may have led to Lona's failure to receive the clerk's notice setting a briefing schedule for the appeal. The briefing schedule called for Lona's opening brief to be due on November 6, 2008. Docket No. 7 (Oct. 7, 2008). It also set deadlines in November and December for Abreu's opposition brief and any reply briefing. See id.
The court's records, however, suggest that a copy of the briefing schedule was mailed to Lona's present address. See Docket No. 7 Service Receipt (Oct. 7, 2008).
Lona failed to file her opening brief on appeal. On December 11, Abreu moved to dismiss the appeal for failure to prosecute. Upon receipt of Abreu's motion to dismiss, Lona claims that she became aware of the briefing schedule. Thus, on December 31, 2008, Lona filed a motion for an extension of time to file her opening brief, which the court also construes as an opposition to the motion to dismiss. The court has reviewed the papers and determined that this matter can be determined without oral argument. See Civil L.R. 7-1(b).
The failure to comply with the court's briefing order may justify dismissal of an appeal. Bankr. R. 8001; In re Scheri, 51 F.3d 71, 74 (7th Cir. 1995). Nonetheless, the case law is clear that dismissal — the ultimate sanction — is not favored as a first corrective measure. See, e.g., English-Speaking Union v. Johnson, 353 F.3d 1013, 1022-23 (D.C. Cir. 2004) (suggesting alternative sanctions like fines or paying the appellee's attorney's fees). Indeed, as a general matter, dismissal tends to only be appropriate upon a showing of the appellant's bad faith or prejudice to the appellee. See id. Abreu has made no showing of prejudice in support of his motion to dismiss, and any evidence of Lona's bad faith has not been developed.
The court therefore grants Lona's motion for an extension of time. Since many months have passed since Lona designated the record and identified the issues she seeks to appeal, the court extends the time for her to file her appellate brief to February 6, 2009. An opposition brief (and any cross-appeal) from Abreu will be due on February 27, 2009. Any reply brief (and opposition to any cross-appeal) will be due on March 11. Any reply to the opposition to any cross-appeal will be due on March 25. If the court deems a hearing necessary, it will schedule one. A failure by Lona to file her appellate brief by February 6 will result in the court issuing an order to show cause why the appeal should not be dismissed for want of prosecution.