UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2025
In Re: LISA ANNETTE BROADNAX,
Debtor.
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LISA ANNETTE BROADNAX,
Plaintiff - Appellant,
versus
FRANK J. SANTORO,
Defendant - Appellee,
versus
US TRUSTEE,
Party in Interest.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CA-04-349; BK-02-72575-DHA)
Submitted: January 31, 2005 Decided: March 3, 2005
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Lisa Annette Broadnax, Appellant Pro Se. Kelly M. Barnhart,
MARCUS, SANTORO & KOZAK, P.C., Chesapeake, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Lisa Broadnax appeals from the district court’s order
dismissing her appeal from a bankruptcy court order for failure to
file an appellate brief in accordance with Fed. R. Bankr. P. 8009.
We vacate the district court’s order and remand for further
proceedings.
Broadnax’s appeal was docketed in the district court on
June 8, 2004. On June 15, 2004, Broadnax filed a “Request to Amend
Appeal Brief Filed on 5/20/04”, along with an “Amended Appeal
Brief.” On July 19, the district court denied Broadnax’s motion.
On August 5, the district court dismissed Broadnax’s appeal for
failure to file a brief in accordance with Rule 8009. Broadnax
noted a timely appeal to this court.
We find that Broadnax’s “Amended Appeal Brief,” filed
within the requisite fifteen days after her appeal was docketed
(see Fed. R. Bankr. P. 8009), should have been considered as her
appeal brief. Although Broadnax’s motion references an original
appeal brief filed on May 20, 2004, that brief is not in the
record. Broadnax may have been confused or the brief may have been
lost. In the absence of an original brief, Broadnax’s amended
brief should have been accepted as her brief.
Even if Broadnax had filed no brief at all, the district
court’s dismissal of her appeal was an abuse of discretion. Rule
8009 provides that an appellant must serve and file a brief within
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fifteen days after entry of the appeal on the docket. Accordingly,
Broadnax’s brief was due by June 23, 2004. However, adherence to
Rule 8009 is non-jurisdictional. See Bankr. R. 8001(a) (providing
that an appellant’s failure to “take any step other than the timely
filing of a notice of appeal does not affect the validity of the
appeal, but is ground only for such action as the district court
. . . deems appropriate, which may include dismissal of the
appeal”).
The district court thus has the discretion to dismiss an
appeal if the appellant fails to comply with the procedural
requirements of the bankruptcy rules, including failing to meet the
time limits for filing an appeal brief. To determine whether to
dismiss a bankruptcy appeal for failure to timely file a brief, the
district court must exercise its discretion under Bankruptcy Rule
8001(a). In re SPR Corp., 45 F.3d 70, 74 (4th Cir. 1995). In
applying Rule 8001(a), the district court must take one of the four
steps outlined in In re Serra Builders, Inc., 970 F.2d 1309 (4th
Cir. 1992). Specifically, the court must: “(1) make a finding of
bad faith or negligence; (2) give the appellant notice and an
opportunity to explain the delay; (3) consider whether the delay
had any possible prejudicial effect on the other parties; or (4)
indicate that it considered the impact of the sanction and
available alternatives,” keeping in mind that dismissal is a “harsh
sanction which the district court must not impose lightly.” Id. at
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1311. Proper application of the Serra Builders test requires the
court to consider and balance all relevant factors. SPR Corp., 45
F.3d at 74.
Here, the district court failed to consider any of these
factors. The district court’s failure to exercise its discretion
in accordance with Serra Builders and SPR Corp. amounts to an abuse
of its discretion. See James v. Jacobson, 6 F.3d 233, 239 (4th
Cir. 1993) (stating that abuse of discretion may occur by failure
to exercise discretion, failure to take into account judicially
recognized factors constraining exercise of discretion, or
erroneous factual or legal premises).
Accordingly, we vacate the district court’s order
dismissing Broadnax’s appeal and remand for further proceedings
consistent with this opinion. We deny Broadnax’s motion for
sanctions and dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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