UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1126
In Re: BEVERLY BYRD; RALPH T. BYRD,
Debtors.
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BEVERLY BYRD; RALPH T. BYRD,
Debtors - Appellants,
versus
GREGORY P. JOHNSON,
Trustee - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(8:06-cv-02704-AW; BK-04-35620; BK-01-25006; AP-06-02008)
Submitted: October 31, 2007 Decided: November 19, 2007
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Ralph T. Byrd, Laytonsville, Maryland, for Appellants. James M.
Hoffman, John D. Sadler, SHULMAN, ROGERS, GANDAL, PORDY & ECKER,
P.A., Rockville, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ralph T. Byrd and Beverly Byrd appeal from the district
court’s order dismissing their appeal from the bankruptcy court for
failure to prosecute. We vacate the district court’s order and
remand this action to the district court for further proceedings.
The Byrds timely noted their appeal from the bankruptcy
court’s order granting the motion to compel payment of allowed
administrative expense claims of the former Chapter 7 and Chapter
11 trustees and counsel for the former trustees. When the Byrds
failed to file their statement of issues and designation of the
record within the time allowed by Bankruptcy Rule 8006, the
district court ordered them to show cause why the appeal should not
be dismissed. Also in that order, the court stated that the notice
sent to the parties by the clerk’s office, which directed the
Byrds’ brief to be filed within fifteen days, should be disregarded
and that a briefing schedule would be set if the case continued.
After considering the Byrds’ response to the show cause
order, the district court allowed the case to continue and ordered
that the previous order directing the Byrds to show cause be
discharged. No new briefing schedule was issued.
After a month passed and the Byrds failed to file an
appeal brief, the district court issued a second order for them to
show cause why sanctions should not be imposed. The Byrds
responded, stating that they had not filed their brief because they
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were waiting for the court to issue a new briefing schedule, as
stated in the first show cause order.
The district court found, in light of the facts that the
first show cause order was “discharged” and that this event
occurred more than a month prior to the district court’s issuance
of the second show cause order for failure to file an appeal brief
within fifteen days of the docketing of the appeal, that the Byrds
failed to show good cause for their failure to file a brief. The
court concluded that the failure to prosecute was negligent and
that further delay would result in prejudice to the other parties
and to the orderly and expeditious administration of the affairs of
the bankruptcy court. The court therefore dismissed the Byrds’
appeal.
Bankruptcy Rule 8009(a)(1) provides that the appellant
must serve and file a brief within fifteen days after entry of the
appeal on the docket. To determine whether to dismiss a bankruptcy
appeal for failure to timely file the designation of the record,
the statement of issues, or appeal brief, the district court must
exercise its discretion under Bankruptcy Rule 8001(a). See In re
SPR Corp., 45 F.3d 70, 74 (4th Cir. 1995). In applying Rule
8001(a), the district court must consider the four factors 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
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explain the delay; (3) consider whether the delay had any possible
prejudicial effect on the other parties; and (4) indicate that it
considered the impact of the sanction and available alternatives,”
keeping in mind that dismissal is a “harsh sanction which a
district court must not impose lightly.” Id. at 1311. Proper
application of the Serra Builders test requires the court to
consider and balance all relevant factors.
In this case, the Byrds admittedly did not file their
appeal brief within the time required by Rule 8009(a)(1). Upon
considering the first three factors, the district court dismissed
the appeal for failure to prosecute. The district court’s failure
to exercise its discretion and consider alternative sanctions for
the Byrds’ failure to make these non-jurisdictional filings, as
required by Serra Builders, 970 F.2d at 1311, and SPR Corp., 45
F.3d at 74, requires a remand. See James v. Jacobson, 6 F.3d 233,
239 (4th Cir. 1993).
Accordingly we vacate the district court order dismissing
the Byrds’ appeal and remand this case to the district court for
application of Bankruptcy Rule 8001(a), as explained in Serra
Builders and SPR Corp.. We 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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