Lucienne Hunter v. Paul Mansdorf

FILED
NOT FOR PUBLICATION NOV 01 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

In re: LUCIENNE HUNTER, Nos. 09-60009
09-60010
Debtor.
BAP Nos. NC-08-1194-PaJuH
LUCIENNE HUNTER and KEVIN NC08-1203-PaJuH
SMITH,
MEMORANDUM *
Appellants,

v.

PAUL MANSDORF, Chapter 7 Trustee,
and UNITED STATES TRUSTEE,
Oakland,

Appellees.

Appeals from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Jury, and Hollowell, Bankruptcy Judges, Presiding

Submitted October 19, 2010 **

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

Lucienne Hunter and Kevin Smith appeal pro se from the January 7, 2009

orders of the Bankruptcy Appellate Panel (“BAP”) dismissing their appeals for

failure to prosecute, from the January 9, 2009 BAP order stating that the BAP

would not take action on the latest motion for extension of time to file the opening

brief because the case had been dismissed, and from the February 13, 2009 BAP

order denying the motion for reconsideration of the dismissals. We have

jurisdiction under 28 U.S.C. § 158(d). We review the orders for abuse of

discretion. Morrissey v. Stuteville (In re Morrissey), 349 F.3d 1187, 1190 (9th

Cir. 2003); Nat’l Bank of Long Beach v. Donovan (In re Donovan), 871 F.2d 807,

808 (9th Cir. 1989) (per curiam). We affirm.

The trustee contends that we have jurisdiction over only the February 13,

2009 order because the notice of appeal was not timely with regard to the earlier

orders. However, because the appellants filed a tolling motion, the notice of appeal

was timely as to all the orders. See Fed. R. Bankr. P. 8002; see also Fed. R. Bankr.

P. 9006(a)(1).

Contrary to the appellants’ contentions, the BAP did not abuse its discretion

by issuing the January 7, 2009 and January 9, 2009 orders because the BAP gave

the appellants several extensions and explicit warnings that failure to file the

2 09-60009 & 09-60010
opening brief might result in dismissal, and the appellants have not provided a non-

frivolous excuse for their failure to file the brief by the time the BAP issued the

orders. See Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir.

1994) (explaining factors courts must consider before dismissing for failure to

prosecute); see also Greco v. Stubenberg, 859 F.2d 1401, 1404 (9th Cir. 1988)

(explaining that courts ordinarily should consider alternative sanctions as well as

the fault of the person failing to prosecute).

The BAP also did not abuse its discretion by denying the motion for

reconsideration because the appellants failed to show that their delay was due to

excusable neglect. See Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en

banc) (explaining the factors to consider when determining whether there is

“excusable neglect”).

AFFIRMED.

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