United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 10, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk
No. 03-20768
Summary Calendar
_______________________
IN THE MATTER OF BAQAR SHAH,
Debtor,
*************************************
MAHENDRA R. MEHTA,
Appellant,
versus
BAQAR SHAH,
Appellee.
Appeal from the United States District Court
For the Southern District of Texas
Houston Division
H-03-CV-0808
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
This case arises from the dismissal of Appellant Mahendra
Mehta’s appeal to the district court from the bankruptcy court.
Mehta initiated an adversary proceeding against debtor Baqar Shah
*
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this opinion should not be published and is not precedent except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.
seeking the nondischargeability of a $2.42 million judgment for
fraud. However, because Mehta failed timely and properly to
replead his case in accordance with a court order, the bankruptcy
judge dismissed the case on January 14, 2003.
Mehta timely filed his notice of appeal on January 23,
2003, to the district court. Under 11 U.S.C. § 8006, Mehta’s
statement of issues was due ten days later on February 3, 2003.
Instead of filing the statement of issues on February 3rd as
required, Mehta filed a motion to extend time to file issues on
appeal. Because the motion was mistakenly filed in the bankruptcy
court, the district court was not given the opportunity to rule on
the motion. Mehta filed the statement of issues in the district
court on February 12, nine days late. On March 5, Shah filed a
motion to dismiss for failure to timely designate the issues for
appeal. The district court granted Shah’s motion to dismiss on
May 21, relying on the untimeliness of Mehta’s statement of issues.
Rule 8001(a) states that “[a]n appellant’s failure to
take any step other than timely filing 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.” FED. R. BANKR. P. 8001(a). As
this rule makes clear, only the failure to file the notice of
appeal deprives the district court of jurisdiction. See also In re
CPDC, Inc., 221 F.3d 693, 698 (5th Cir. 2000). The district court
was not compelled to dismiss this appeal, although it might in the
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exercise of sound discretion. Id. at 698-99. Nevertheless,
“[d]ismissal is a harsh and drastic sanction that is not
appropriate in all cases.” Id. at 699.
In its order dismissing this appeal, the district court
wrote that “[b]ecause the appellant’s untimeliness, in filing his
issues on appeal, is unexplained . . . this appeal has not been
properly perfected.” Thus, it appears that the court was under the
mistaken belief that the failure to comply with Rule 8006 somehow
affected its jurisdiction. We therefore VACATE the district
court’s order and REMAND for application of the correct legal
standard. See In re CPDC, 221 F.3d at 699-700; Matter of M.A.
Baheth Constr. Co., 118 F.3d 1082 (5th Cir. 1997). However, it is
the district court’s duty, in the first instance, to determine
whether the brief delay occasioned by the procedural error in this
appeal ultimately warrants dismissal.
VACATED and REMANDED.
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