Unpublished Disposition, 842 F.2d 1294 (9th Cir. 1986)

MEMORANDUM^** 

Flynt Distributing Co. (FDC) appeals the district court's dismissal of its appeal from the bankruptcy court's disallowance of its administrative claim against Schoenbrun (Sbn), Chapter 11 debtors in bankruptcy, and its imposition of attorneys' fees. We reverse and remand.

We shall not set forth all the circumstances that the record reflects with respect to this appeal. We will restrict ourselves to those we believe essential to our disposition of the appeal.

Following FDC's timely appeal of the bankruptcy court's disallowance of its administrative claim, it received from the district court an order setting forth the procedure to be followed in an appeal from the bankruptcy court which directed the appellant to file (1) within ten days after filing the notice of appeal, a statement of issues on appeal with a notice that the reporter's transcript has been ordered; (2) within thirty days after the statement of issues is filed, the reporter's transcript; and (3) within fifteen days after the reporter's transcript is filed, the appellant's brief. FDC conformed to the direction with respect to a statement of the issues and the ordering of the reporter's transcript on January 8, 1985 and January 10, 1985, respectively. It took no further action, however.

On December 4, 1985, the district court issued an order to show cause why the appeal should not be dismissed due to the failure of FDC to comply in all respects with the district court's order. A response to this show cause order was filed on December 20, 1985. On that day it appears that FDC attempted to file its opening brief and excerpts of record. For reasons not significant to our disposition of this appeal, both appear to have been entered on the district court's records on December 23, 1985.

Following a hearing the district court entered an order on February 26, 1986 dismissing the appeal from the bankruptcy court's disallowance of its administrative claim. Subsequently, the district court also entered an order awarding $8,070 in attorneys' fees to Sbn's counsel. We review both actions under the abuse of discretion standard. In re Hill, 775 F.2d 1385, 1386 (9th Cir. 1985).

FDC makes several arguments, only one of which has merit. Thus, he argues that there was no clear record of delay. This is clearly incorrect. Next he argues that the district court failed to find he acted in bad faith. No such finding is necessary. See Henderson v. Duncan, 779 F.2d 1421, 1425 (9th Cir. 1986) (Rule 41(b), Fed. R. Civ. P.) . FDC then argues that dismissal was improper because a warning of its possibility was not given. The order to show cause gave sufficient notice. The last of FDC's meritless claims is that the district court did not find that Sbn was prejudiced by the delay. The fact is otherwise. The district court explicitly found that Sbn had been prejudiced by the delay. It did not abuse its discretion in doing so.

FDC's argument that the district court did not consider alternative sanctions before dismissing the case as required by In re Hill, 775 F.2d at 1387, is valid. Our independent review of the record does not enable us to say that alternative sanctions were considered. See Malone v. United States, 833 F.2d 128, 130 (9th Cir. 1987). Therefore, we must reverse and remand for the limited purpose of permitting the district court to so consider the possibilities of alternative sanctions. In doing so, it should be understood that we express no opinion on whether such possibilities exist or not.

The award of attorneys' fees, being dependent upon the dismissal of FDC's appeal from the bankruptcy court's disallowance, must also be set aside.

Any further appeals from the district court's actions pursuant to this limited remand shall be heard by this panel.

REVERSED AND REMANDED.