Lawson v. Tice , 115 F. App'x 611 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1875
JONI LYNNE LAWSON,
Debtor - Appellant,
versus
DOUGLAS O. TICE, JR., Judge, United States
Bankruptcy Court,
Appellee,
versus
ROBERT E. HYMAN, Trustee,
Party in Interest.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-04-238-3; BK-03-41613-DOT)
Submitted: October 26, 2004 Decided: November 1, 2004
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joni Lynne Lawson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joni Lynne Lawson appeals from the district court’s order
dismissing her appeal from the bankruptcy court for failure to
prosecute. We affirm the district court’s order.
After the bankruptcy court dismissed Lawson’s Chapter 13
case for failure to comply with a court order, Lawson timely noted
her appeal to the district court. Although granted additional time
to do so, Lawson failed to file her appeal brief and did not
request a further extension of time or provide any explanation to
the district court. The district court dismissed the appeal for
failure to prosecute.
Bankruptcy Rule 8009(a)(1) provides that the appellant
must serve and file a brief within fifteen days after entry of the
appeal on the docket. To determine whether to dismiss a bankruptcy
appeal for failure to timely file the appeal brief, the district
court must exercise its discretion under Bankruptcy Rule 8001(a).
See In re SPR Corp., 45 F.3d 70, 74 (4th Cir. 1995). In applying
Rule 8001(a), the district court must: “(1) make a finding of bad
faith or negligence; (2) give the appellant notice and an
opportunity to explain the delay; (3) consider whether the delay
had any possible prejudicial effect on the other parties; or
(4) indicate that it considered the impact of the sanction and
available alternatives,” keeping in mind that dismissal is a “harsh
sanction which a district court must not impose lightly.” In re
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Serra Builders, Inc., 970 F.2d 1309, 1311 (4th Cir. 1992). Proper
application of the Serra Builders test requires the court to
consider and balance all relevant factors. SPR Corp., 45 F.3d at
74.
In this case, Lawson admittedly did not timely file her
appeal brief as required by Rule 8009(a)(1). The district court
found this to be negligence and not excusable neglect and dismissed
the appeal for failure to prosecute. Although the district court
did not address the four Serra Builder factors, in this case, we
find such error to be harmless.
This Court reviews a judgment of the district court
sitting in review of a bankruptcy court de novo, applying the same
standards of review that were applied in the district court. Three
Sisters Partners, L.L.C. v. Harden (In re Shangra-La, Inc.), 167
F.3d 843, 847 (4th Cir. 1999). The bankruptcy court’s order
dismissing Lawson’s bankruptcy case for failure to comply with a
court order is reviewed for abuse of discretion. Ballard v.
Carlson, 882 F.2d 93, 96 (4th Cir. 1989). Prior to dismissing
Lawson’s Chapter 13 case, the bankruptcy court issued a show cause
order, held a hearing, and allowed Lawson additional time. In the
order dismissing the show cause order, the bankruptcy court
detailed the requirements Lawson had to fulfill to avoid dismissal
of her bankruptcy case. Despite these measures, Lawson failed to
timely notice the rescheduled meeting of creditors and failed to
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file her bankruptcy schedules. On these facts, the bankruptcy
court did not abuse its discretion in dismissing the petition.
Because a remand to the district court for consideration of the
Serra Builder factors would not ultimately result in a reversal of
the bankruptcy court’s decision to dismiss Lawson’s bankruptcy
case, we find that the district court’s failure to consider all of
the factors was harmless.
Accordingly we affirm the district court order dismissing
Lawson’s appeal. In light of this disposition, we deny Lawson’s
motion to stay the foreclosure sale scheduled to occur on
November 1, 2004. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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