Permula Corporation v. Pacheco, No. 3:2018cv00288 - Document 21 (W.D. Tex. 2019)

Court Description: MEMORANDUM OPINION AND ORDER. Signed by Judge David Briones. (lc3)

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PermulaCorporationv.Pacheco Doc.21 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT O TEXAS EL PASO DIVISION PERMULA CORPORATION, Appellant, fl j 4 § § I 1 1c q (;f § V. EP-18-CV-288-DB § § HELSON PACHECO, Appellee. § § ORANDUM OPINION On this day, the Court considered Appellee Pacheco 's ("Appellee") "Motion to Dismiss Appeal" ("Motion"), filed in the abo case on January 25, 2019. Therein, Appellee asks the Court to dismiss Appellant Permula appeal because Appellant did not timely file its brief by Deceni Federal Rule of Bankruptcy Procedure 8018. On January 28, s ("Appellant") 31, 2018 in violation of 19, Appellant filed its "Response to Helson Pacheco's Motion to Dismiss" On February 8, 2019, Appellee filed his "Reply to Response to Motion to Dismiss ("Reply"). After due consideration, the Court is of the opinion that the Motion should be granted. BACKGROUND This case involves an appeal ofthe United States Western District of Texas El Paso Division's ("bankruptcy c Proceeding" entered on September 4, 2018. "Order Dismissing Adversary d,ECFNo. 1,atEx. l,p.3. Orders Being Due to Appellant's "failure to comply with orders of the court], [Appellant's] failure to timely prosecute this adversary proceeding, and [Appellant's] attorney after warning, the [bankruptcy court] [found] that [the] dismissed. . ." Id. at 4 (citing FED. R. Civ. P. 41(b)). Court for the In the to retain a licensed proceeding should be "trder Denying Motion for New Dockets.Justia.com Trial," the bankruptcy court further details the missed that Appellant repeatedly made. Id. at 6-11. despite granted continuances, This was not by Appellant attorney's argument that missing the deadlines was beyond his control dueto issues with logging into the electronic filing system and delays with the mail, therefore Appllant was not entitled to a new trial in the bankruptcy court. Id. at 12-13. On October 3, 2018 the clerk of this Court receivd the "Transmission of Appeal to District Court." Id. at Ex. 4. Motion to Appear Pro Hac Vice. ECF No. 4. On October 19, 2018, the Coirt granted Appellant attorney's Order Granting Appellant's to Appear Pro Hac Vice, On November 5, 2018, the Court granted as unoppsed Appellant's "Motion for Leave to File Motion to Enlarge Time to File Designation of Re4ord and Statement of Issues, Motion for Leave to File Paper Motions, while Motion Pro Hac yice is Pending Before the Court" ("Motion to Enlarge Time"), and "Motion to Enlarge T Record and Statement of Issues." e to File Designation of Order Granting Mot.s for Exension of Time, ECF No. 8. On November 27, 2018 the complete "Bankruptc Record on Appeal" was transmitted to this Court including both Appellant's Designation Designation of the Record. 1 and Bankruptcy Record Bankruptcy Record Appellant's qesignation, ECF No. 10, at Ex. Appellee's Designation, ECF No. 11 2018, the clerk of this Court issued a "Notice of Docketing Notice, ECF No. 12. f the Record and Appellee's at Ex. 1. On November 30, on Appeal" ("Notice"). Included in this Notice and entered on the face of the docketing sheet was 1 In its Motion to Enlarge Time, Appellant claims that its inability to file its issues in compliance with the 14-day deadline imposed by Federal Rule of I was "not for reasons under its control." Mot. for Extension of Time, ECF 1' that the Court's failure to grant Appellant attorney's Motion to Appear Pro I "difficult, ifnot impossible" to comply with the Rule, especially considering the Rule. Id. The Court notes that it entered an Order granting Appellant a on October 19, 2018. Order Granting Appellant's Mot. to Appear Pro Hac 2 ignation of record and statement of the kruptcy Procedure 8009 ("the Rule") 5, at 2. Specifically, Appellant states Vice as of October 22, 2018, made it "very short time allowed [to file]" by ey's Motion to Appear Pro Hac Vice e. ECF No: 4. a deadline for Appellant to file its brief within 30 days after the docketing of the Notice by December 31, 2018. Notice, ECF No. 12, at 1; and DocketingSheet, ECF No. 15, at Ex. B, p. 2 (detailing next to docket number 12: "Appellant Brief due by 1 /3 1/2018"). On February 13, 2019, this Court denied Appellant's Motion for Leave to File Uitime1y Brief. Order Denying Leave, ECF No. 20. STANDARD Federal Rule of Bankruptcy Procedure 801 8(a)(9 explains that an appellant must "serve and file a brief within 30 days after the docketing of noti4e that the record has been transmitted or is available electronically{,]" unless the district ccurt or bankruptcy appellate panel issues an order in a particular case that excuses the filing f briefs or specifies different time limits. an appellee may move to And "if an appellant fails to file a brief on time. dismiss the appeal. . ." FED. R. BANKR. P. 8018(a)(4). ANALYSIS Appellee argues in its Motion that Appellant did iiot timely file its brief within 30 days after the Notice had been transmitted nor did it file any moltion for additional time to file its brief Mot., ECF. No. 13, at 2. Thus, the appeal should be di$nissed because the Federal Rules of Bankruptcy are not being followed. Id. Appellant reponds that it has no record of the Notice in either its electronic mail or spam folder. Resp., EF No. 14, at 1. also claims that no paper correspondence with the Notice was re4eived. Id. Appellant Much like its arguments for a new trial in the bankruptcy court, Appellant clai*s that "unusual circumstances" justif' denying Appellee's Motion in order to achieve "substantikl justice." Id. at 2. Furthermore, Appellant claims that its attorney can file its brief epeditiously. Id. In its Reply, App ellee counters that Appellant had notice of the deadline for its brief from at least three sources. Reply, ECF No. 15, at 1-3. 3 ]irst, the clerk of this Court docketed the Record on Appeal on November 27, 2018 and the Notice was entered on November 30, 2018. Id. at 1. The Notice was sent to Appellant's attorny at his law office ("Law Office of Gerry Linan, P.O. Box 4810, Brownsville, TX 78523"), as eidenced by the clerk's uploaded statement of mailing. Id. at 2 (citing Ex. A). Second, Appel1nt's attorney's excuse that he had no notice of the deadline is not credible given his ability to file both the appeal in this Court and his Motion for Pro Hac Vice, which indicate his general abi'ity to check this Court's electronic docket where the deadline was clearly displayed. Id at 2. Finally, by reading Federal Rule of Bankruptcy Procedure 8018, Appellant's attorn4y could have learned of the deadline. Id. Therefore, the appeal should be dismissed. Tlis Court agrees with Appellee. CONCLUSION Under Federal Rule of Bankruptcy Procedure 80 8, Appellant needed to "serve and file a brief within 30 days after the docketing" of the Noticeon November 30, 2018. Neither this Court nor the bankruptcy appellate panel issued an. rder that excused the filing of Appellant's brief or specified a different time limit. Thus, because Appellant failed to file a brief by December 31, 2018, Appellee may move to dismiss the FED. R. BANXR. P. 801 8(a)(4). Accordingly, IT IS HEREBY ORDERED that Helson Pacheco's "Motion to Dismiss Appeal" is GRANTED. SIGNED this I? day of March 2019. TIWH SENIOR UI thLE DAVID BRIONES STATES DISTRICT JUDGE

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