UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
In Re )
Elliotte Patrick Coleman, )
Debtor. )
)
ELLIOTTE PATRICK COLEMAN, )
)
Appellant, )
)
v. ) Civil Action No. 09-1592 (RMC)
)
COUNTRYWIDE HOME LOANS, INC., )
)
Appellee. )
____________________________________)
MEMORANDUM OPINION
Elliotte Patrick Coleman, proceeding pro se, appeals from an order of the bankruptcy
court granting summary judgment to Countrywide Home Loans, Inc. Mr. Coleman filed a notice of
appeal with the U.S. District Court on July 1, 2009. Mr. Coleman thereafter moved for recusal of
the undersigned, which the Court denied, and Mr. Coleman now intends to appeal to the Supreme
Court after the D.C. Circuit denied his appeal. To date, Mr. Coleman has yet to file a brief or any
papers which speak to the merits of the instant matter. Countrywide Home Loans, Inc.
(“Countrywide”) has twice moved to dismiss the case for lack of jurisdiction and for failure to timely
file a brief. Upon consideration of the motions and the entire record, the Court will grant the motion
to dismiss.
I. FACTS
On May 11, 2009, the United States Bankruptcy Court for the District of Columbia
granted summary judgment to Countrywide in a proceeding below. See Coleman v. Countrywide
Home Loans, Inc. (In re Coleman), Adv. Pro. No. 07-10022 (Bankr. D.D.C. May 11, 2009) [Dkt.
# 54]. On June 2, 2009, Mr. Coleman asked for an extension of time to file a notice of appeal. See
Id. [Dkt. # 59]. Although his motion for an extension of time was opposed, Mr. Coleman filed a
notice of appeal with the U.S. District Court for the District of Columbia on July 1, 2009. See Id.
[Dkt. # 62]. On July 15, 2009, the Bankruptcy Court denied the motion for an extension of time
pursuant to Federal Rule of Bankruptcy Procedure 8001. See Id. (Mem. Op. & Order) [Dkt. ## 68,
69]. The Bankruptcy Court noted that Mr. Coleman had until May 21, 2009 to file a timely notice
of appeal pursuant to Fed. R. Bankr. P. 8002(a)1. Pursuant to Fed. R. Bankr. P. 8002(c)(2), the
Bankruptcy Court could only entertain Mr. Coleman’s untimely motion upon a showing of excusable
neglect. See Id. [Dkt. # 68] at 2. The Bankruptcy Court determined that Mr. Coleman had failed to
meet his burden of showing excusable neglect and denied his motion for an extension of time. See
Id. at 10.
On August 21, 2009, the record on appeal was transmitted to the District Court. See
Id. [Dkt. # 77]. After being assigned to this Court, Mr. Coleman filed motions on August 28, 2009
and September 9, 2009, seeking recusal of the undersigned. See [Dkt. ## 3, 4, 5]. On September
16, 2009, recusal was denied and Mr. Coleman was granted until September 30, 2009, to file a brief.
See [Dkt. # 7]. On October 9, 2009, after Mr. Coleman failed to timely file a brief, the Court ordered
him to show cause by October 23, 2009, why the Court should not dismiss the case pursuant to Fed.
R. Bankr. P. 8002(a)(1), which requires that an appellant serve and file its brief within 15 days after
1
Effective December 1, 2009, Fed. R. Bankr. P. 8002(a) was amended to allow for a
timely notice of appeal to be filed within 14 days of the date of the entry of the judgment, order,
or decree to be appealed from. While the 14 day deadline does not apply to this case, Mr.
Coleman’s filing would not have been timely under the amendment as the notice was filed more
than 14 days after entry of judgment.
-2-
entry of the appeal. See [Dkt. # 8]. On October 23, 2009, Mr. Coleman moved for an extension of
time to show cause, advising the Court that he had filed a mandamus action in the Circuit Court of
Appeals seeking recusal of the undersigned. See [Dkt. # 9]. Thereafter, on October 29, 2009,
Countrywide moved to dismiss the appeal for lack of jurisdiction. See Mot. to Dismiss [Dkt. # 10].
On December 30, 2009, the Court of Appeals denied Mr. Coleman’s petition for a writ of
mandamus. See In re Coleman, No. 9-5390 (D.C. Cir. Dec. 30, 2009). In accordance with Fox v.
Strickland, 837 F.2d 507 (D.C. Cir. 1988), this Court then advised Mr. Coleman of his obligation
to respond to Countrywide’s motion to dismiss or face the prospect that the motion may be granted
as conceded. See [Dkt. # 12]. The Court gave Mr. Coleman until January 19, 2010, to respond to
the Court’s order to show cause and to file a response to the motion to dismiss. See Id. Mr.
Coleman was warned that failure to comply with the order could lead to dismissal of his appeal. See
Id.
On January 19, 2010, Mr. Coleman petitioned the Circuit Court of Appeals to rehear
his petition for a writ of mandamus. Mr. Coleman simultaneously filed a motion here seeking an
extension of time to show cause and to respond to the motion to dismiss until after the Circuit
rendered its decision. See [Dkt. # 13]. The Circuit denied his petition per curiam on April 8, 2010.
See In re Coleman, No. 9-5390 (D.C. Cir. Apr. 30, 2009).
On April 22, 2010, Mr. Coleman moved, yet again, for an indefinite extension of time
to show cause and to respond to the motion to dismiss so he could petition the Supreme Court in
mandamus to recuse the undersigned. See [Dkt. # 14]. The Court entered a Minute Order on April
23, 2010, giving Mr. Coleman until May 14, 2010, to show cause and respond to Countrywide’s
motion to dismiss – with a clear warning that no further extensions would be granted and that failure
-3-
to file a response could lead to dismissal of the case. See Minute Entry Order, Apr. 23, 2010. Mr.
Coleman has failed to file any response. Instead, Mr. Coleman filed a notice that he is seeking a stay
of the case by the Circuit pending his petition to the Supreme Court to recuse the undersigned. See
[Dkt. # 17].
II. LEGAL STANDARD
When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of
Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the
benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196,
1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over the claim, a court may consider
materials outside the pleadings. Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir.
2005). No action of the parties can confer subject matter jurisdiction on a federal court because
subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. District of
Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction bears
the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112,
1115 (D.C. Cir. 2008). While it is true that a court has an “obligation to construe pro se filings
liberally, . . . .” United States v. Byfield, 391 F.3d 277, 281 (D.C. Cir. 2004),2 clear indications of
a lack of jurisdiction will lead to dismissal.
2
See also Haines v. Kerner, 404 U.S. 519, 520 (1972) (noting that pro se complaints are
held to “less stringent standards than formal pleadings drafted by lawyers . . .”); Jarrell v. Tisch,
656 F. Supp. 237, 239 (D.D.C. 1987) (noting that this less stringent standard “does not constitute
a license for a plaintiff filing pro se to ignore the Federal Rules of Civil Procedure, . . . ”).
-4-
III. DISCUSSION
A. Federal Rule of Bankruptcy Procedure 8002
Federal Rule of Bankruptcy Procedure 8002 requires a party to file a notice of appeal
within ten days after the judgment or order to be appealed from is entered. Fed. R. Bankr. P.
8002(a). A party may move the bankruptcy court for an extension of time to file a notice of appeal
before the time has expired, or no later than twenty days after expiration of the time upon a showing
of excusable neglect. Fed. R. Bankr. P. 8002(c)(2). Many circuit courts have found that a failure
to timely file a notice of appeal is a jurisdictional defect barring appellate review. See, e.g., Siemon
v. Emigrant Savs. Bank (In re Siemon), 421 F.3d 167 (2d Cir. 2005) (noting that untimely filings are
a jurisdictional matter, even for pro se appellants); In re LBL Sports Ctr., Inc., 684 F.2d 410, 412
(6th Cir. 1982) (recognizing that time limit in predecessor rule 8002(a) was jurisdictional); Robinson
v. Robinson (In re Robinson), 640 F.2d 737, 738 (5th Cir. 1981) (same); Ramsey v. Ramsey (In re
Ramsey), 612 F.2d 1220, 1222 (9th Cir. 1980) (same); In re Herwit, 970 F.2d 709, 710 (10th Cir.
1992) (same). Furthermore, the advisory committee's note to rule 8002(a) clarified that the rule is
an “adaptation” of rule 4(a) of the Federal Rules of Appellate Procedure. Fed. R. Bankr. P. 8002
advisory committee's note. It is established that the time limit prescribed by Fed. R. App. P. 4(a) is
“mandatory and jurisdictional.” Browder v. Dir., Dep't of Corr. of Ill., 434 U.S. 257, 264 (1978)
(internal quotation marks omitted); see also Bowles v. Russell, 551 U.S. 205 (2007).
However, the Supreme Court has recently injected some doubt into whether Rule
8002 is jurisdictional in nature. In a string of cases, the Supreme Court has held that federal rules
prescribing mandatory filing deadlines only deprive a court of jurisdiction where the deadline
was statutorily created. If a deadline lacks a statutory foundation, but is born of the judiciary
-5-
through the federal rules, then the rule is an inflexible claim-processing rule, which is obligatory
if invoked, but forfeited by a failure to bring a timeliness objection. See Kontrick v. Ryan, 540
U.S. 443, 452-56 (2004) (holding that Fed. R. Bankr. P. 4004(a) is a non-jurisdictional claim-
processing rule); Eberhart v. United States, 546 U.S. 12, 15-17 (2005) (same for Fed. R. Crim. P.
33); Bowles, 551 U.S. at 209-13 (holding that failure to abide by Fed. R. App. P. 4 deprives a
court of jurisdiction as the rule echoed the deadlines set forth in 28 U.S.C. § 2107). In the wake
of these cases, neither the D.C. Circuit nor the Supreme Court has spoken to whether Fed. R.
Bankr. P. 8002 is a jurisdictional bar or a claim-processing rule.
At least one circuit has found that the deadline in Rule 8002 is statutorily
established and reaffirmed its earlier holding that Fed. R. Bankr. P. 8002 remains a jurisdictional
hurdle. See In re Latture, No. 09-6016, 2010 U.S. App. LEXIS 10276 (10th Cir. May 20, 2010).
The Third Circuit recently revisited its earlier holding in In re Universal Minerals, Inc., 755 F.2d
309 (3d Cir. 1985), and noted that it was now unclear whether failure to comply with Rule 8002
is a jurisdictional defect or a “non-jurisdictional ‘claim-processing rule’ that is mandatory when
invoked by a party, but subject to waiver if no timeliness objection is raised.” In re Fryer, 235
Fed. Appx. 951, 953 (3d Cir. 2007). The Fryer Court did not resolve the ambiguity because even
if the Rule were non-jurisdictional, the district court had correctly dismissed an untimely appeal
as the appellee had invoked Rule 8002 in moving to dismiss on timeliness grounds. Id.
In this case, Mr. Coleman asked the Bankruptcy Court for an extension of time to file
a notice of appeal twenty-two days after that Court had entered final judgment. As the ten-day
deadline for filing a motion had passed, see Fed. R. Bankr. P. 8002(a), Mr. Coleman could only
proceed with his untimely appeal to this Court if he demonstrated excusable neglect. See Fed. R.
-6-
Bankr. P. 8002(c)(2). The Bankruptcy Court found that Mr. Coleman had not shown excusable
neglect and denied his motion to extend the time to file a notice of appeal. Therefore, Mr.
Coleman’s notice of appeal, filed with the District Court on July 1, 2009, was untimely. If Rule
8002 is jurisdictional in nature, this Court lacks subject-matter jurisdiction to hear Mr. Coleman’s
appeal and may dismiss the matter sua sponte. Assuming, arguendo, that Rule 8002 is a claim-
processing rule, the Court must still dismiss the matter as Countrywide invoked the Rule in raising
a timeliness objection to the notice of appeal in its motion to dismiss. See Mot. to Dismiss [Dkt. #
10] at 3.
B. Federal Rule of Bankruptcy Procedure 8009
Federal Rule of Bankruptcy Procedure 8009 requires that an Appellant serve and
file a brief within fifteen days after entry of the appeal. See Fed. R. Bankr. P. 8009.3 Federal
Rule of Bankruptcy Procedure 8001 and Local Rule 8009-1 authorize district courts to dismiss
appeals when appellants file untimely briefs. See Fed. R. Bankr. P. 8001(a) (“An appellant's
failure to take any step other than timely filing a notice of appeal . . . is ground only for such
action as the district court . . . deems appropriate, which may include dismissal of the appeal.”);
LCvR 8009-1 (“If, after an appeal has been noted . . . , the appellant fails to serve and file a brief
within the time required by Bankruptcy Rule 8009, the District Court may, upon motion of the
appellee . . . , or upon its own order, dismiss the appeal for failure to comply with [the time
limit].”). However, the D.C. Circuit disfavors summary dismissal for procedural violations and
instead requires a district court to “consider[] the circumstances before [it] and explain[] why it is
3
Like Fed. R. Bankr. P. 8002, Rule 8009 was amended effective December 1, 2009,
providing that an appellant shall serve and file a brief within 14 days after entry of the appeal.
-7-
in the interest of justice to dismiss rather than to proceed to the merits.” English-Speaking Union
v. Johnson, 353 F.3d 1013, 1022 (D.C. Cir. 2004) (noting that a court, as a first measure, usually
issues an order to show cause when a party fails to timely file a brief); see also Canady v. Erbe
Elektromedizin GmbH, 307 F. Supp. 2d 2, 9 (D.D.C. 2004) (noting the Circuit’s “preference for
an adjudication on the merits and a corresponding disfavor for resolving litigation by default[]”).
Nonetheless, dismissal is warranted after a party has ignored repeated orders by a court to file a
brief. For instance, in In re AOV Industries, Inc., the D.C. Circuit upheld a district court’s
dismissal due to appellant’s failure to file a brief. See 798 F.2d 491, 494 (D.C. Cir. 1986).
Following a ten-month delay, the district court ordered the appellant to file a brief or face
dismissal. The district court dismissed the case after the appellant failed to properly respond to
the order and ignored a subsequent motion to dismiss. Id.
After entry of the notice of appeal on August 21, 2009, Mr. Coleman was granted
an initial extension of time to file a brief, yet failed to comply with the Court’s order. The Court
responded by ordering Mr. Coleman to show cause why the case should not be dismissed for
failure to timely file a brief. See [Dkt. # 8]. Mr. Coleman responded with a motion to extend
time. See [Dkt. # 9]. Following the second extension of time, Countrywide moved the court to
dismiss the case. See [Dkt. # 10]. Following Mr. Coleman’s unsuccessful appeal of the Court’s
denial of his motion for recusal, the Court reminded Mr. Coleman of his obligation to respond to
the order to show cause and the motion to dismiss, and warned that failure to do so could result
in dismissal. See [Dkt. # 12]. Mr. Coleman responded twice more to deadlines set by the Court,
not with responses, but with motions to extend time. The last extension of time, granted on April
23, 2010, made clear that no further extensions would be granted and that failure by Mr.
-8-
Coleman to file his responses by May 14, 2010, could lead to dismissal of the matter. See
Minute Entry Order on April 23, 2010. Mr. Coleman did not respond, except to notice the Court
that he is pursuing an appeal to the Supreme Court. See [Dkt. # 17]. Following this notice,
Countrywide renewed its motion to dismiss. See [Dkt. # 18]. Therefore, despite four substantial
extensions of time, Mr. Coleman has yet to file a brief, or any other papers concerning his appeal.
This simply is not a case where the Court is considering dismissal for a simple procedural
mistake or a slight delay, as efforts to obtain a response from Mr. Coleman have proven fruitless.
Justice does not prevent dismissal as Mr. Coleman’s failure to file any brief is just one of several
infirmities with this appeal.4
C. Local Rule 7(b)
Local Rule 7(b) provides a similar route for dismissal for failure to prosecute.
Pursuant to the rule, the Court may treat as conceded any motion not opposed within the time
limits. See LCvR 7(b). Local Rule 7(b) is a “docket-management tool that facilitates efficient
and effective resolution of motions . . . .” Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C.
Cir. 2004); see also Weil v. Seltzer, 873 F.2d 1453, 1459 (D.C. Cir. 1989) (appellant who failed
to file response within time prescribed by Local Rule 7(b)’s predecessor “is deemed to have
waived his opposition” to the motion and “may not now complain on appeal”). Therefore, much
like dismissal for failure to prosecute, Local Rule 7(b) allows for a court to manage its docket
and to rule on motions where one party is lax in responding, or fails to respond altogether. Mr.
Coleman has placed this litigation on hold since the entry of the notice of appeal on August 21,
4
It also appears that Mr. Coleman has failed to comply with Fed. R. Bankr. P. 8006 by
failing to file a designation of issues to be presented on appeal and items to be included in the
record. See also Part A, supra, Part C, infra.
-9-
2009, and has failed to respond to Countrywide’s motion to dismiss despite explicit warnings
that Local Rule 7(b) applies to the instant matter. In accord with Local Rule 7(b), the Court will
grant Countrywide’s motion to dismiss as conceded.
IV. CONCLUSION
Based on Mr. Coleman’s untimely notice of appeal, his refusal to file a brief or
show cause, and his failure to respond to Countrywide’s motion to dismiss despite notice that the
motion could be granted as conceded, this case will be dismissed. A memoralizing Order
accompanies this Memorandum Opinion.
Date: June 2, 2010 /s/
ROSEMARY M. COLLYER
United States District Judge
-10-