IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-10650
Summary Calendar
_____________________
In The Matter Of: KENNETH ALLEN GOLDBLATT,
Debtor.
KENNETH ALLEN GOLDBLATT,
Appellant,
versus
A & W INDUSTRIES INC.,
Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CV-0256-A
_________________________________________________________________
October 18, 2001
Before JOLLY, HIGGINBOTHAM, and PARKER, Circuit Judges.
PER CURIAM:1
This appeal contests the district court’s order that dismissed
an appeal from the bankruptcy court. The district court dismissed
the appeal because Kenneth Allen Goldblatt, the debtor and
appellant, failed to file his brief within the twenty day period
required by Northern District of Texas Bankruptcy Rule 8009.1(a).
We find no abuse of discretion and affirm.
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
The relevant facts are these: In June 2000, Goldblatt
designated a piece of commercial property in Grapevine, Texas as
his business homestead. On June 29, Goldblatt filed for Chapter 11
protection in the United States Bankruptcy Court for the Northern
District of Texas. During the ensuing bankruptcy proceedings, A &
W Industries, Inc., the tenant in possession of the premises in
question, filed a motion for a determination of its status as a
creditor. On February 28, 2001, the Bankruptcy Court issued a
final order finding that the property does not meet the
requirements for a business homestead under Texas law.
On March 7, 2001, Goldblatt’s bankruptcy attorney filed a
timely notice of appeal from the order in the bankruptcy court.
The next day, because of his deteriorating health, Goldblatt’s
bankruptcy attorney forwarded his files for the appeal to the
instant attorney. On April 2, two weeks after the March 19
deadline for filing a designation of records and a statement of
issues on appeal under Bankruptcy Rule 8006, Goldblatt’s substitute
counsel moved to extend the deadline.2 A & W opposed the motion.
The district court found that Goldblatt’s counsel had not shown
that the delay in filing was the result of excusable neglect and
2
Evidently, Goldblatt’s counsel erroneously filed the motion
in the bankruptcy court on April 2, and it did not reach the
district court clerk until April 9. Goldblatt also asserts in his
brief that his counsel filed a designation of the record along with
his motion to extend the deadline. A review of the record in this
case indicates that no such filing was docketed in the district
court or transmitted to this Court on appeal.
denied Goldblatt’s motion to extend the deadline for filing his
designation and statement of issues. After this ruling, Goldblatt
failed to file an appellate brief (or any other documents) within
the period set by Local Bankruptcy Rule 8009.1.3 The district
court dismissed Goldblatt’s appeal sua sponte. The court also
noted Goldblatt’s failure to satisfy the procedural requirements
for appeal set out in Bankruptcy Rule 8006.
II
Bankruptcy Rule 8001(a) provides that the “[f]ailure of an
appellant to take any step other then the timely 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.” Because the deadline for
filing an appellate brief under Rule 8009 is not jurisdictional,
the failure to satisfy the deadline does not require an automatic
dismissal. See In re Tampa Chain Co., Inc., 835 F.2d 54, 55 (2d
Cir. 1987).
While we have said that dismissal is a “penalty of last
resort” to be employed sparingly, we have also made clear that a
district court’s dismissal of an appeal will be affirmed unless the
district court abused its discretion. Matter of Braniff Airways,
Inc., 774 F.2d 1303, 1305 (5th Cir. 1985); Matter of CPDC, Inc.,
3
Under Local Rule 8009.1(a) the appellant’s opening brief must
be filed within twenty days after entry of the appeal on the
docket. Although Goldblatt filed his notice of appeal in the
bankruptcy court on March 7, 2001, his appeal was not docketed in
the district court until March 28, 2001.
221 F.3d 693, 698 (5th Cir. 2000). In reviewing the district
court’s decision, we must consider “the prejudicial effect of the
delay on the appellees and the bona fides of the appellant” to
ensure that the client is not “unduly punished for his attorney’s
mistakes.” CPDC, 221 F.3d at 698 (citations and internal quotation
marks omitted). But, as the Seventh Circuit observed in Matter of
Scheri, 51 F.3d 71, 75 (7th Cir. 1995):
We . . . must remember that the district
court, not the appellate court, is in the best
position to assess the nature of the delay,
the motivations of the parties and their
attorneys, and the impact of the delay on the
court's calendar. Consequently, our review of
a district court's broad discretion to deal
with litigation delay, even through the
drastic sanction of dismissal, is deferential.
III
With these principles in mind, we conclude that the district
court acted within its discretion. We have fully considered
Goldblatt’s contention that his substitute counsel’s various
procedural failures are excusable because counsel’s office received
the file while he was away at a trial in Starr County, Texas. In
his motion to extend the Rule 8006 deadline, Goldblatt’s counsel
asserted that he was in trial from March 9 until March 16, 2001,
and did not return to his office until March 19, 2001. The motion
does not provide an account of counsel’s activities between March
16 and the resumption of the Starr County trial on April 2, the
date he moved to extend the time for filing his designation and his
statement of issues. Goldblatt thus offers no explanation for
counsel’s failure to file a motion for extension immediately after
he returned to his office on March 19.
In determining whether an omission was the product of
excusable neglect, courts should consider “the danger of prejudice
to the [appellee], the length of the delay and its potential impact
on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.” Pioneer Inv. Serv. Co. v.
Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993).
Counsel’s travel schedule or absence from office is generally not
sufficient to support a finding of excusable neglect. See Airline
Professionals Ass'n v. ABX Air, Inc., 109 F.Supp.2d 831, 834 (S.D.
Oh. 2000) (“[C]ourts still demand that an attorney show more than
a busy practice or absence from the office to merit an extension of
the time in which to file a notice of appeal.”) (citations
omitted).
This principle has particular force where, as here, counsel
fails to request an extension before the applicable deadline passes
and fails to file an appellate brief.4 In view of the delay caused
by Goldblatt’s failure to file a statement of issues, a designation
of the record on appeal, or an appellate brief notifying A & W of
4
This situation is therefore distinguishable from CPDC, 221
F.3d at 698-700, in which we reversed a district court’s dismissal
of a bankruptcy appeal under Rule 8001. In CPDC, the appellant
filed a designation of record excerpts but failed to file a
statement of issues. See id. at 695. We noted that “[a]lthough
the statement of issues was not timely filed, Appellants did file
their appellate brief timely and prior to the district court’s
dismissal of the appeal.” Id. at 700.
the issues on appeal, the district court could properly conclude
that dismissal was warranted in this case.5
Accordingly, we hold that the district court did not abuse its
discretion in dismissing the appeal, and its judgment is therefore
AFFIRMED.
5
See In Re Serra Builders, Inc., 970 F.2d 1309, 1311 (4th Cir.
1992) (affirming dismissal of a bankruptcy appeal because the
appellant filed its designation of the record on appeal fifteen
days late and did not request an extension until after the deadline
had passed; noting that the only explanation offered was that the
appellant’s attorney was out of the country); Nielsen v. Price, 17
F.3d 1276, 1277 (10th Cir. 1994) (affirming dismissal of appeal
from bankruptcy court judgment because, without explanation, the
plaintiffs failed to designate the record on appeal, file a
statement of the issues, or file an appellate brief); see also
Matter of M.A. Baheth Const. Co., Inc., 118 F.3d 1082, 1083-84
(5th Cir. 1997) (affirming district court’s dismissal of an appeal
under FED. R. APP. P. 6 for failure to file a designation of records
and issues on appeal).