In Re Lena Albert Fleek, Debtor.lena Albert Fleek, Plaintiff-appellant, v. Gerald M. O'donnell, Trustee, Trustee-appellee, 875 F.2d 314 (4th Cir. 1989)

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US Court of Appeals for the Fourth Circuit - 875 F.2d 314 (4th Cir. 1989) Submitted March 22, 1989. Decided May 3, 1989. Rehearing and Rehearing En Banc Denied May 25, 1989

Lena Albert Fleek, appellant pro se.

Gerald M. O'Donnell, for appellee.

Before DONALD RUSSELL, WIDENER, and SPROUSE, Circuit Judges.


Lena Fleek, a pro se litigant, appeals from the district court's dismissal of her appeal from an adverse ruling of the bankruptcy court. We vacate the district court's order.

Fleek filed for bankruptcy under Chapter 13 of the Bankruptcy Code in April 1987. Subsequently, Fleek's bankruptcy petition was involuntarily converted from Chapter 13 to Chapter 7. Fleek's motion to reconvert it to Chapter 13 under a new repayment plan was denied by the bankruptcy court, and she appealed to the district court. The district court granted Fleek an extension of time to file the brief required by Bankruptcy Rule 8009 so that she could locate documents which would support her appeal. Fleek filed a motion to compel production of documents which was denied on October 7, 1988. On November 2, the district court dismissed Fleek's appeal for failure to file a brief pursuant to Bankruptcy Rule 8009.

Although a district court has the authority to dismiss an appeal for failure to comply with Bankruptcy Rule 8009, see Bankr.Rule 8001(a), before doing so the court must make a finding of bad faith or inexcusable neglect by the appellant, find prejudicial effect of the delay to the creditors, or notify the pro se appellant that non-compliance with a bankruptcy rule could result in dismissal. See In Re Tampa Chain Company, Inc., 835 F.2d 54, 55-56 (2d Cir. 1987) (not an abuse of discretion for district court to dismiss where attorney gave no excuse for his failure to file a brief seven months past the deadline when the court specifically requested an explanation), citing In Re Beverly Manufacturing Corp., 778 F.2d 666 (11th Cir. 1985) (dismissal vacated and remanded where district court made no finding as to bad faith, negligence, or indifference by appellant who took all the necessary steps for appeal except filing a brief); In Re Braniff Airways, Inc., 774 F.2d 1303 (5th Cir. 1985) (not an abuse of discretion to dismiss appeal where no brief had been filed 19 1/2 months after docketing and district court's action reviewed in light of prejudicial effect of delay on the appellees).

Because the record does not disclose that the district court conducted the required analysis or that Fleek was warned that dismissal was contemplated, we vacate the dismissal and remand for further proceedings consistent with this opinion. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.