Free Order on Motion to Dismiss/Lack of Prosecution - District Court of Delaware - Delaware

Case 1:07-cv-00073-JJF Document 11 Filed 03/05/2007 Page 1 014
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: :
: Involuntary Chapter 7
VII HOLDINGS COMPANY, :
: Bankr. Case No. 06-10935
Debtor. :
JOHN WILSON, ;
Appellant, E
v. ; Civil Action No. 07-73-JJF
CAMBRIDGE PROPERTIES, LLC, E
and SOUTHBRIDGE SAVINGS BANK, :
Appellees. E 3
MEMORANDUM ORDER U
Pending before the Court is the Motion Of Cambridge I
Properties, LLC And Southbridge Savings Bank For Order Exempting
Appeal From Mediation Process And Dismissing Appeal (D.I. 3). By
their Motion, Appellees, Cambridge Properties, LLC and
Southbridge Savings Bank, request the Court to dismiss this
appeal based on Appellant’s failure to file a designation of
record within ten days of the filing of his notice of appeal as
required by Federal Rule of Bankruptcy Procedure 8006. Appellees
contend that Appellant was aware of the filing deadline through
both a docket entry and “upon information and belief" through his
conversation with an employee of the Clerk of the Bankruptcy
Court. Yet, Appellant failed to request an extension of time or
otherwise comply with the deadline, and therefore, Appellees
contends that dismissal is appropriate. In the alternative,

Case 1:07-cv-00073-JJF Document 11 Filed 03/05/2007 Page 2 014
Appellees request the Court to excuse this case from the
mandatory mediation process.
In response, Appellant contends that he did speak with a
case manager from the Bankruptcy Court who informed him that he
could file his designation of record with this Court once the
filing fee was paid, the case was docketed and a case number was
assigned. Appellant further contends that he has now complied
with the procedural requisites of Rule 8006, and Appellees have
failed to demonstrate any prejudice resulting from his delay.
Thus, Appellant contends that dismissal of this appeal is not
warranted. In addition, Appellant takes no position on whether
to excuse the parties from the mediation requirement, leaving
that decision to the Court’s discretion.
The failure to comply with Rule 8006 is not jurisdictional.
gee eege, Pamaco Partnership Mgmt. Corp. v. TMC Terraplan Mgmt.
Qegpe, 158 B.R. 61, 65 (W.D. Va. 1993). As a result, dismissal I
for failure to comply with Rule 8006 is generally inappropriate
absent a showing of bad faith or prejudice. In re Comer, 716 I
F.2d 168 (3d Cir. 1983). E
In this case, Appellant is appearing egg ee and represents
to the Court that he may have received misguided advice from the
Bankruptcy Court’s Clerk's office regarding the filing )
requirements of Rule 8006. Although Appellant is ultimately
responsible for compliance with the Bankruptcy Rules, Appellees =
)
2 gl
1
I
r

Case 1:07-cv-00073-JJF Document 11 Filed 03/05/2007 Page 3 of 4
have not demonstrated that the extreme sanction of dismissal is
warranted here. See In re Fred Haardt, 1991 WL 101555 (E.D. Pa.
June 7, 1991) (recognizing that reliance on statements made by
clerk’s office personnel does not excuse noncompliance with court
rules, but declining to dismiss appeal for failure to comply with
procedural rules absent showing of bad faith or history of
dilatoriness). Appellees make several allegations that Appellant
has acted in bad faith; however, those allegations concern the
merits of the underlying appeal. The Court can discern no
evidence of bad faith based on the submissions related to this
issue. Moreover, Appellant has now designated the record in
compliance with Rule 8006, and the Court cannot conclude that
Appellees have been prejudiced by the delay.1 Accordingly, the
Court will deny Appellees’ Motion to the extent it seeks 3
dismissal of this appeal. The Court further concludes that, in 3
the circumstances of this case, the mediation requirement should 7
be excused. 3
NOW THEREFORE, IT IS HEREBY ORDERED that: g
1. The Motion Of Cambridge Properties, LLC And Southbridge
Savings Bank For Order Exempting Appeal From Mediation Process
";""`_ 1
1 Although Appellant's designation of record did not Q
include a statement of issues on appeal as is also required by é
Rule 8006, Appellant has laid out the issues related to this Q
appeal in his Opposition to Appellees’ Motion To Dismiss. (D.I. .
6 at 3-4.) Accordingly, the Court concludes that Appellant has L
satisfied the requirements of Rule 8006. 1
3 1
;

Case 1:07-cv-00073-JJF Document 11 Filed O3/05/2007 Page 4 of 4
And Dismissing Appeal (D.I. 3) is DENIED to the extent that it
seeks dismissal of this appeal and GRANTED to the extent that it
seeks to excuse this appeal from the mediation process.
2. The mandatory mediation requirement for the above-
captioned appeal is waived.
3. The parties shall adhere to the following briefing
schedule unless an otherwise agreed upon schedule is filed within
fifteen (15) days of the date of this Order;
a. Appellant’s Opening Brief on appeal shall be filed
within fifteen (15) days of the date of this Order.
b. The Answering Brief on appeal shall be filed
within fifteen (15) days of receipt of the Opening Brief.
c. The Reply Brief on appeal shall be filed within
ten (10) days of receipt of the Answering Brief.
March b , 2007
DATE · TED ST S DISTRICT UD E