In Re Carol Lavon Pulliam, No. 5:2015cv00250 - Document 13 (C.D. Cal. 2015)
Court Description: ORDER DENYING EMERGENCY APPLICATION TO ADVANCE HEARING DATE 12 ; DENYING MOTION TO SET ASIDE DISMISSAL 10 by Judge Otis D. Wright, II. (SEE DOCUMENT FOR SPECIFICS). (lc). Modified on 6/24/2015 (lc).
In Re Carol Lavon Pulliam Doc. 13 1 2 O 3 4 5 6 United States District Court Central District of California 7 8 9 10 IN RE CAROL LAVON PULLIAM, 11 USBC No. 6:14-bk-25027-WJ 12 Case No. 5:15-cv-00250-ODW ORDER DENYING EMERGENCY Debtor, 13 __________________________________ APPLICATION TO ADVANCE 14 CAROL LAVON PULLIAM, HEARING DATE ; DENYING 15 16 17 18 19 MOTION TO SET ASIDE Appellant, DISMISSAL . v. ROD DANIELSON, Appellee. I. INTRODUCTION 20 The instant action is an appeal from dismissal by the Bankruptcy Court. On 21 May 28, 2015, following Appellant’s failure to comply with the procedures and orders 22 of the Court, this Court dismissed the appeal. Appellant now moves the Court to set 23 aside the May 28 Order denying Appellant’s motion for more time to file an opening 24 brief and dismissing the appeal. 25 Application, that the Court advance the hearing date on Appellant’s Motion. For the 26 reasons discussed below, the Court affirms its dismissal, DENIES Appellant’s 27 Emergency Application to Advance Hearing Date, and DENIES Appellant’s Motion 28 to Set Aside Dismissal. (ECF Nos. 10, 12.) Appellant also requests, via an Emergency Dockets.Justia.com II. 1 FACTUAL BACKGROUND 2 On January 30, 2015,1 the United State Bankruptcy Court issued an Order and 3 Notice of Dismissal arising from Carol Pulliam’s Chapter 13 confirmation hearing 4 (case number 6:14-bk-25027-WJ). (Am. Notice of Appeal at 3, ECF No. 4.) Pulliam 5 immediately appealed, and elected to proceed before the District Court. (Notice of 6 Appeal, ECF No. 3; Am. Notice of Appeal.) On February 9, the appeal was assigned to this Court, and the Court issued a 7 8 Notice Regarding Appeal From Bankruptcy Court. (ECF No. 1.) The Notice 9 informed the parties that they must comply with the applicable rules of the Federal 10 Rules of Bankruptcy Procedure (“Fed. R. Bankr. P.”). (Id. at 1.) It informed the 11 parties that this Court would issue a briefing schedule after the Bankruptcy Court 12 certified that the record was complete. (Id. at 2.) It further informed the parties that 13 any request for an extension of time in the briefing schedule must be filed “well in 14 advance of the due date, and must specify good cause for the requested extension.” 15 (Id.) Finally, the Notice advised the parties that “failure of either party to comply with 16 time requirements as stated in this notice and applicable rules may result in the 17 dismissal of the appeal . . . .” (Id.) 18 Also on February 9, the Court docketed Appellant Pulliam’s Notice of Appeal. 19 (ECF No. 3.) On March 4, the Court docketed Appellant’s Amended Notice of 20 Appeal, which attached a copy of the Order of Dismissal issued by the Bankruptcy 21 Court. (ECF No. 4.) On May 12, the Bankruptcy Court certified that the record was 22 ready and this Court issued the Notice Re: Bankruptcy Record Complete, Briefing 23 Schedule, and Notice of Entry. (ECF Nos. 6, 7.) The Briefing Schedule ordered 24 Appellant to submit an opening brief “not later than 5/26/15.” (ECF No. 7.) On May 25 26, Appellant filed a “Motion for More Time to File Opening Brief.” (ECF No. 8.) 26 On May 28, the Court issued an Order to Dismiss Appeal (“May 28 Order”) denying 27 Appellant’s Motion for more time for failure to comply with Fed. R. Bankr. P. 8009- 28 1 All date references are to the year 2015. 2 1 4.5 (C.D. Cal. L. Bankr. R. 4.5) and dismissing the appeal for failure to file an 2 opening brief according to Fed. R. Bankr. P. 8018-4.4 (C.D. Cal. L. Bankr. R. 4.4).2 3 (ECF No. 9.) On June 8, Appellant moved to set aside the dismissal of her appeal (also 4 5 entitled “Motion for Reconsideration”). (ECF No. 10.) Appellant included a 6 declaration with the Motion in which she stated that she had “searched everywhere” 7 but could not find Local Rule of Bankruptcy Procedure 4.5, and that “[i]t is a mystery 8 what the court did and why.” (Id. at 2.) 9 Appellee opposed on June 10. (ECF No. 11.) Also on June 10, Appellant filed 10 an Emergency Application to Advance Hearing Date on Motion to Reconsider. 11 (Appl., ECF No. 12.) Appellant’s Motion and Application are before the Court for 12 consideration. III. 13 14 A. DISCUSSION Emergency Application to Advance Hearing Date 15 “A motion will be decided without oral argument unless the district court . . . 16 orders otherwise.” Fed. R. Bankr. P. 8013(c). After carefully considering the papers 17 filed in support of and in opposition to Appellant’s Motion for Reconsideration, the 18 Court deems the matter appropriate for decision without oral argument. Appellant’s 19 Emergency Application to Advance Hearing Date is therefore MOOT. 20 Additionally, emergency motions must be accompanied by an affidavit 21 containing specified information and an appendix that includes conformed copies of 22 the Notice of Appeal and the Order. C.D. Cal. L. Bankr. R. 5; Fed. R. Bankr. P. 23 8013(d). Appellant failed to comply with these requirements. Appellant’s declaration 24 did not contain the information specified by Fed. R. Bankr. P. 8013(d), and Appellant 25 26 27 28 2 The Federal Rules of Bankruptcy Procedure (“Fed. R. Bankr. P.”) were amended effective December 1, 2014. The Local Rules Governing Bankruptcy Appeals for the Central District (“C.D. Cal. L. Bankr. R.”) currently reference the former Fed. R. Bankr. P. number (i.e. Fed. R. Bankr. P. 8009 is now cited at 8018). The substance of the relevant rules remains unaffected, and C.D. Cal. L. Bankr. R. 4.4 and 4.5 continue to be found at Rule 4.4 and 4.5 respectively. 3 1 did not attach the Notice of Appeal or the Order. Accordingly, the Court DENIES 2 Appellant’s Emergency Application to Advance Hearing Date. (ECF No. 12.) 3 B. Motion to Set Aside Dismissal Although Appellant captioned the Motion as “Motion to Set Aside Dismissal,” 4 5 Appellant treats the Motion as one for reconsideration. 6 (ECF No. 10 at 1, 3.) Therefore, the Court will also consider it as such. 7 In the Central District, a motion for reconsideration must be based upon (a) a 8 material difference of fact or law from that which was presented to the Court before 9 the order, (b) new material facts or law emerging after the order, or (c) a manifest 10 showing that the Court failed to consider material facts presented before the order. 11 C.D. Cal. L.R. 7-18. Appellant may not repeat any written argument made in support 12 of the original motion. 13 reconsideration. Appellant presents no different facts or law, no newly emerging facts 14 or law, and fails to demonstrate, or even allege, that the Court did not consider 15 material facts before issuing the May 28 Order. Id. Here, Appellant has demonstrated no basis for 16 Appellant alleges in the Motion that she is subject to “manifest injustice by 17 having her appeal dismissed for reasons that are not set forth by the court.” (ECF No. 18 10 at 3.) But Appellant was notified of the potential consequences of failure to 19 comply with the rules of the Court in the first document docketed in this appeal. The 20 Notice Regarding Appeal stated “failure of either party to comply with time 21 requirements as stated in this notice and applicable rules may result in the dismissal of 22 the appeal . . . .” (ECF No. 1 at 2.) Further, the May 28 Order expressly stated the 23 rules with which Appellant failed to comply and the consequent Court action. 24 Appellant’s confusion does not provide a basis for reconsideration. Therefore, the 25 Court DENIES Appellant’s Motion to Set Aside Dismissal. (ECF No. 10.) 26 /// 27 /// 28 /// 4 1 C. May 28 Order 2 To address Appellant’s apparent confusion regarding this Court’s procedural 3 rules and Orders, the Court provides the following clarification regarding the May 28 4 Order. 5 1. Denial of Request for More Time (Motion for Extension) 6 A motion for an extension of time for filing a brief shall be filed within the time 7 limits prescribed by the District Court. Fed. R. Bankr. P. 8018 (formerly 8009); C.D. 8 Cal. L. Bankr. R. 4.5. The Court informed Appellant, via the Notice Regarding 9 Appeal, that any request for an extension of time in the briefing schedule must be filed 10 “well in advance of the due date, and must specify good cause for the requested 11 extension.” (ECF No. 1 at 2.) The Court ordered the opening brief due no later than 12 May 26, 2015, and thus, any motion for an extension of the briefing schedule was due 13 “well in advance of” May 26, 2015. (ECF No. 7.) 14 Additionally, Local Bankruptcy Rule 4.5 requires that a motion for an extension 15 of the briefing schedule must state “the date the brief is due, how many previous 16 extensions have been granted, when the brief was first due, and whether any previous 17 requests for extension of time have been denied.” C.D. Cal. L. Bankr. R. 4.5. Further, 18 the motion must state “the reason(s) why such an extension is necessary, the amount 19 of additional time requested, and the position of the opponent(s) as to the proposed 20 extension or why the moving party has been unable to obtain a statement of the 21 opponent’s position.” Id. 22 Appellant’s Motion for More Time to File Opening Brief did not comply with 23 these requirements. Appellant filed the Motion for More Time on May 26, which is 24 not “well in advance” of that deadline. Further, the Motion for More Time omitted 25 Appellee’s position regarding the extension and any reference of previous requested 26 extensions. The Motion for More Time failed to justify the requested thirty day 27 extension or demonstrate how additional documents could establish good cause for 28 such an extension, especially considering that the record had already been certified as 5 1 complete. Because Appellant’s Motion for More Time to File Opening Brief failed to 2 comply with the requirements, on May 28, the Court properly denied the Motion for 3 More Time. 4 2. Dismissal of Appeal 5 Briefs on appeal are due as ordered by the Court. Fed. R. Bankr. P. 8018(a); 6 C.D. Cal. L. Bankr. R. 4.1. The Court ordered Appellant to file an opening brief no 7 later than May 26. “If an appellant fails to file a brief within the time provided by 8 these rules, the district court may dismiss the appeal on its own motion . . . .” C.D. 9 Cal. L. Bankr. R. 4.4; see Fed. R. Bankr. P. 8018(a)(4). In addition to these rules, the 10 Court notified Appellant, via the Notice Regarding Appeal, that any “failure of either 11 party to comply with time requirements as stated in this notice and applicable rules 12 may result in the dismissal of the appeal . . . .” (ECF No. 1 at 2.) Appellant did not 13 file a brief as ordered. Therefore, the Court properly dismissed the appeal. IV. 14 CONCLUSION 15 For the reasons discussed above, the Court DENIES Appellant’s Emergency 16 Application to Advance Hearing Date (ECF No. 12) and DENIES Appellant’s Motion 17 to Set Aside Dismissal (ECF No. 10). 18 19 IT IS SO ORDERED. 20 21 June 23, 2015 22 23 24 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 25 26 27 28 6