NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1015
___________
In re: DEBORAH R. MALLOY,
Debtor
J&V DEVELOPERS, INC.
v.
DEBORAH R. MALLOY;
GARY F. SEITZ, CHAPTER 7 TRUSTEE OF THE ESTATE
OF DEBORAH MALLOY
DEBORAH MALLOY
v.
DOM BUCCI; CENTURY 21 CREST REAL ESTATE, LTD.
Deborah R. Malloy; Edward C. Malloy,
Appellants
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-16-cv-05079)
District Judge: Honorable Petrese B. Tucker
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 21, 2017
Before: GREENAWAY, JR., VANASKIE and ROTH, Circuit Judges
(Opinion filed: December 26, 2017)
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OPINION*
___________
PER CURIAM
Pro se appellants Deborah and Edward Malloy appeal the District Court’s orders
dismissing their appeal from an order of the Bankruptcy Court and denying their motion
for reconsideration. For the reasons detailed below, we will vacate the District Court’s
order and remand for further proceedings.
In August 2015, the Bankruptcy Court granted J&V Developers Inc.’s motion for
summary judgment and ordered that a fee award J&V had obtained against Deborah was
nondischargeable under 11 U.S.C. § 523(a)(6). On August 12, 2016, Edward Malloy,
Deborah’s husband, filed a motion to intervene in the bankruptcy proceeding. On August
14, 2016, Edward filed a motion seeking reconsideration of the nondischargeability order.
On August 15, 2016, Deborah filed her own motion for reconsideration. On September
9, 2016, the Bankruptcy Court denied all three motions.
The Malloys filed a notice of appeal to the District Court, which was entered on
the District Court’s docket on September 23, 2016. On November 8, 2016, the District
Court dismissed the appeal due to the appellants’ failure to comply with Rule 8009 of the
Federal Rules of Bankruptcy Procedure, which requires appellants to “file with the
bankruptcy clerk and serve on the appellee a designation of the items to be included in
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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the record on appeal and a statement of the issues to be presented.” The appellants
sought reconsideration, which the District Court denied, and they then filed a timely
notice of appeal.
We have jurisdiction under 28 U.S.C. § 158(d)(1). We review the District Court’s
dismissal order for abuse of discretion. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d
Cir. 1992).
Here, because the District Court did not provide any explanation for its decision to
dismiss the appeal (beyond noting the Malloys’ failure to comply with Rule 8009), we
have no meaningful way to review its exercise of discretion. See generally Livera v. First
Nat’l State Bank of N.J., 879 F.2d 1186, 1194 (3d Cir. 1989) (discussing role of appellate
court in reviewing district courts’ discretionary decisions in related circumstances). Rule
8003 of the Federal Rules of Bankruptcy Procedure provides that, if an appellant does not
take a necessary step after filing a notice of appeal, the District Court can “act as it
considers appropriate, including dismissing the appeal.” Rule 8003(a)(2). However, we
have also recognized that, in bankruptcy appeals, “[n]ot every failure to follow
procedural rules mandates dismissal of the appeal.” In re Comer, 716 F.2d 168, 177 (3d
Cir. 1983). In Comer, we affirmed the District Court’s refusal to dismiss an appeal upon
“finding no prejudice to debtors or bad faith on the part of the creditors.” Id.; see also
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (setting forth a
variety of factors for district courts to consider before dismissing a complaint).
Thus, while the District Court possessed the power to dismiss the Malloys’ appeal,
it was not required to do so, and without an explanation of its reasons, we are unable to
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assess whether its decision represented a proper use of its discretion. See generally
Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987). Accordingly, we will
vacate the District Court’s order and remand the matter for consideration of whether
dismissal is appropriate in the circumstances presented here.1
1
The appellants also argue that it was improper for the District Court to act in their case
pending Deborah’s appeal before this Court in C.A. No. 16-2767, but they are incorrect.
To the contrary, we stayed No. 16-2767 pending the District Court’s decision in this
action, thus signaling our expectation that this action would go forward.
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