                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-2006

In Re:Richardson Ind
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3868




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                                                             NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                 No. 05-3868
                                _____________

       IN RE: RICHARDSON INDUSTRIAL CONTRACTORS, INC.,
                               Debtor

                         HARRY A. RICHARDSON,
                                   Appellant

                                        v.

   TREACY, SHAFFEL, MOORE & MUELLER; DEANNE ARNONE; LARRY
     BLUMENSTYK; STATE OF NEW JERSEY; SALVATORE ARNONE

                      ANDREA DOBIN; US TRUSTEE,
                                   Trustees
                          _________________

                  Appeal From the United States District Court
                          For the District of New Jersey
                           (D.C. Civil No. 05-cv-00501)
                 District Judge: Honorable Garrett E. Brown, Jr.
                             ____________________

                  Submitted Under Third Circuit LAR 34.1(a)
                                June 1, 2006

             Before: RENDELL, AMBRO and ROTH, Circuit Judges

                            (Filed: June 20, 2006)
                               ______________

                          OPINION OF THE COURT
                              _____________


PER CURIAM
       This appeal represents one of several cases arising from disputes over a Federal

Bureau of Prisons construction contract on the New York Metropolitan Detention Center

(MDC). Appellant Harry Richardson appeals from the District Court’s order dismissing

his appeal with prejudice for failure to follow the mandates of the Federal Rules of

Bankruptcy Procedure. For the reasons that follow we will vacate and remand for further

proceedings.

                                             I.

       After more than a decade of litigation, the parties are now quite familiar with the

facts and, thus, we only briefly recite them here. In 2003, Richardson Industrial

Contractors, Inc. (RICI), commenced a bankruptcy action in which Richardson, as RICI’s

principal shareholder, joined as a creditor. See In re Richardson Indus. Contractors, Inc.,

No. 03-26318 (Bankr. D.N.J.). On December 6, 2004, the Bankruptcy Court entered an

order denying Richardson’s motion for reconsideration of its order denying his

application for designation of a new independent counsel to prosecute RICI’s claim in the

United States District Court for the Eastern District of New York. Richardson timely

appealed to the United States District Court for the District of New Jersey.

       Pursuant to the briefing schedule set by the District Court in accordance with

Bankruptcy Rule 8009, Appellant’s brief was due on February 10, 2005.1 When the


  1
       Richardson filed his notice of appeal in the Bankruptcy Court on December 10,
2004. The Bankruptcy Rules anticipate that a complete record will be assembled before
being transmitted to the District Court for appeal. Thus, an appeal is not formally
docketed until the record has been transmitted to the District Court, which in this case

                                             2
briefing schedule was issued, Appellant was also directed to furnish paper copies of all of

the documents listed in the designation of the record. On February 4, 2005, Appellant

sent a letter to the District Court Clerk requesting that the Clerk establish “a reasonable

schedule and method of payment” for him to provide the documents and grant an

extension of time until May 10, 2005 to submit his brief. On February 10, 2005,

Appellant filed a letter motion with the Court requesting that it grant the extension of time

requested in his February 4 letter.

       Appellees Larry Blumenstyk and Salvatore and Deanna Arnone objected to

Appellant’s request, arguing that the motion was filed for the sole purpose of delay and

that Appellant had not set forth any legitimate basis for extending the time to file his

brief. On March 21, 2005, the District Court granted Appellant’s motion, finding

Appellant’s request for a 90-day extension to be excessive, but granting Appellant a 60-

day extension, until April 8, 2005, to file his brief.

       On April 5, 2005, three days before the brief was due, Appellant filed a second

request for an extension of time until May 10, the date the District Court had previously

rejected as excessive. Appellant argued that upon receiving the Court’s order granting

him an extension of time, he contacted the Bankruptcy Court regarding the transcripts

noticed in the designated record and was informed that, even with expedition, the



occurred on January 26, 2005. See Fed. R. Bankr. P. 8007(b). The time in which to file
appeal briefs begins to run from the date the appeal is entered on the District Court
docket. See Fed. R. Bankr. P. 8009(a).

                                               3
transcripts would not be available until shortly after April 8. It appears from this

statement that Appellant did not attempt to acquire these transcripts until after March 21

despite having filed his notice of appeal in the Bankruptcy Court on December 10, 2004.

Appellant supplemented his motion with a letter to the Court dated April 6, 2005

indicating that the Bankruptcy Court had provided a disc to the transcription service

containing incorrect data, thereby further delaying production of the transcripts.

       Appellees opposed Richardson’s second motion, arguing that it did not differ

substantially from his first, that it was merely a delaying tactic, and that Appellant had

failed to promptly order transcripts after filing the designation of record as required by

Federal Rule of Bankruptcy Procedure 8006.2

       On May 9, 2005, while his motion for an extension of time was still pending,

Richardson filed his appeal brief. On May 24, 2005, the District Court issued an order

denying Richardson’s motion for an extension of time and dismissing his appeal for

failure to follow the Bankruptcy Rules and to timely file an appellate brief. The Court

held that Appellant had intentionally disregarded its original order rejecting his request

for a 90-day extension of time to file his brief and instead granting a 60-day extension;



  2
        The Bankruptcy Rules require that, within ten days of filing a notice of appeal, an
appellant file and serve on the appellee a designation of the items to be included in the
record on appeal and a statement of the issues to be presented. See Fed. R. Bankr. P.
8006. In addition, “[i]f the record designated by any party includes a transcript of any
proceeding or a part thereof, the party shall, immediately after filing the designation,
deliver to the reporter and file with the clerk a written request for the transcript and make
satisfactory arrangements for payment of its cost.” Id.

                                              4
that while the Federal Rules of Bankruptcy Procedure provide 15 days in which to file an

appellate brief, Appellant had been allowed more than two months in which to do so; and

that Appellant had failed to take immediate steps after the filing of the designation of

record to file a written request for transcripts as required by Federal Rule of Bankruptcy

Procedure 8006. The Court concluded that Richardson’s failure to honor the previously

extended deadline of April 8, 2005, as well as his failure to comply with Federal Rule of

Bankruptcy Procedure 8006, constituted egregious behavior and bad faith, and could not

be considered excusable neglect. The Court further found that Richardson’s actions could

not satisfactorily be addressed by discovery sanctions or barring participation in oral

argument, and therefore concluded that dismissal of the appeal pursuant to Federal Rule

of Bankruptcy Procedure 8001 was warranted.

       On June 6, 2005, Richardson timely moved for reconsideration, arguing that the

District Court had misapplied the relevant case law and had not accorded sufficient

consideration to Appellant’s pro se and financial status in concluding that his appeal

should be dismissed. The District Court held that Appellant had not met the stringent

standard governing motions for reconsideration, and for the reasons stated in its initial

order, denied Appellant’s motion for reconsideration.3 Richardson timely filed a notice of

appeal.



  3
        By the same opinion and order, the District Court also denied Richardson’s motion
for a stay pending appeal. Because Richardson does not address this issue in his appellate
brief, we do not consider it here.

                                              5
                                              II.

        We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a

dismissal for failure to prosecute for abuse of discretion. In re Jewelcor Inc., 11 F.3d 394,

397 (3d Cir. 1993).

        Appellant argues that the District Court erred in concluding that he had engaged in

egregious behavior by failing to comply with the time limitations for filing his brief “due

to the failure of the Bankruptcy Court to forward the proper discs to the Court Reporter,

due to the myriad of motions at that time and due to the complexity of the conflict la[w]

that has to be researched.” He maintains that he filed his brief “within the realistic period

of time that he originally requested” and before the District Court had ruled on his brief.

Appellant argues that he exhibited no bad faith or egregious conduct, that he in fact filed

his brief 15 days before the District Court issued its decision, and that the Court failed to

indicate what “other sanctions” it considered before deciding to dismiss his appeal.

According to Appellant, at best his conduct may be characterized as “excusable neglect”

and his late filing should be excused. While Appellee Larry Blumenstyk filed a response

in which the Arnones joined, the response addresses the merits of the underlying appeal,

rather than the District Court’s dismissal of the appeal, and therefore we do not discuss it

here.

        Under Rule 8001(a) of the Federal Rules of Bankruptcy Procedure, the District

Court is empowered to dismiss an appeal for failure to prosecute or otherwise follow the

procedures set out in the Bankruptcy Rules. In assessing the propriety of such an action,

                                              6
we have stated that:

       we will be guided by the manner in which the trial court balanced the
       following factors, which have been enumerated in the earlier cases, and
       whether the record supports its findings: (1) the extent of the party’s
       personal responsibility; (2) the prejudice to the adversary caused by the
       failure to meet scheduling orders and respond to discovery; (3) a history of
       dilatoriness; (4) whether the conduct of the party or the attorney was willful
       or in bad faith; (5) the effectiveness of sanctions other than dismissal,
       which entails an analysis of alternative sanctions; and (6) the
       meritoriousness of the claim or defense.

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). We have

previously held that the failure of a district court to consider all of these factors prior to

dismissing an action for failure to prosecute constitutes an abuse of discretion. See

Livera v. First Nat’l State Bank of New Jersey, 879 F.2d 1186, 1188 (3d Cir. 1989);

Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 73-74 (3d Cir. 1987).

       In its initial order dismissing the appeal, the District Court concluded:

       appellant’s failure to honor the previously extended deadline of April 8,
       2005 as set by this Court to file his appellate brief, as well as his failure to
       comply with the aforementioned requirement of Fed. R. Bankr. P. 8006
       satisfies the egregious behavior, bad faith and excusable neglect
       requirements which support dismissal of the appeal; and the Court further
       finding that less severe sanctions, which would include discovery sanctions,
       barring participation in oral argument and the like, fail to adequately
       address the utter failure of Appellant to follow the mandates of the Federal
       Rules of Bankruptcy Procedure, and as such, are rejected by this Court as
       viable alternatives to dismissal.

As we have explained, in reviewing a dismissal for failure to prosecute, we will be guided

by the way in which the District Court balanced all six of the Poulis factors. See Poulis,

747 F.2d at 868; see also United States v. $8,221,877.16 in United States Currency, 330


                                               7
F.3d 141, 162 (3d Cir. 2003) (explaining that “we have always required consideration and

balancing of all six of the factors, and have recommended the resolution of any doubts in

favor of adjudication on the merits”). Here, the District Court considered only two of the

six factors: Richardson’s bad faith in requesting a second extension of time in which to

file his brief and the ineffectiveness of alternative sanctions. Furthermore, the Court’s

discussion of these two factors was limited and did not set out the basis for its conclusions

in such a way as to permit meaningful review of its decision. See In re MacMeekin, 722

F.2d 32, 35 (3d Cir. 1983) (concluding that district court’s mere description of counsel’s

conduct as “‘inexcusable neglect’” and “a ‘conscious failure to comply’ with discovery”

does not adequately provide reviewing court with rationale for lower court’s decision);

Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77, 80 (3d Cir. 1982)

(explaining that there must be some “articulation of the basis for the [district court’s]

action . . . [to] enable the reviewing court to determine whether the relevant factors were

considered and assigned appropriate weight in making the decision”).

       As observed by the Eleventh Circuit, “[d]ismissal typically occurs in cases

showing consistently dilatory conduct or the complete failure to take any steps other than

the mere filing of a notice of appeal.” In re Beverly Mfg. Corp., 778 F.2d 666, 667 (11th

Cir. 1985). see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)

(approving use of dismissal as sanction for “utter failure” of plaintiff to provide defendant

with damages calculation until eve of trial); Nielsen v. Price, 17 F.3d 1276, 1277 (10th

Cir. 1994) (upholding dismissal of bankruptcy appeal for failure to follow Bankruptcy

                                              8
Rules or timely file appeal brief where plaintiffs provided no explanation or excuse for

noncompliance); In re Champion, 895 F.2d 490, 492 (8th Cir. 1990) (finding no abuse of

discretion in dismissing appeal where appellant had not filed designation of record or

statement of issues required by Bankruptcy Rule 8006); In re Tampa Chain Co., 835 F.2d

54, 56 (2d Cir. 1987) (affirming dismissal of bankruptcy appeal for failure to file brief for

seven months after due date or provide any explanation for failure, even after court’s

inquiry into delinquency). By contrast, Appellant twice requested extensions of time in

which to file his brief, citing difficulties in obtaining transcripts from the Bankruptcy

Court proceedings. This is in line with our recommendation that when compliance with

deadlines imposed either by the district court or court rules is not feasible, the litigant

should timely request an extension. See Poulis, 747 F.2d at 868.

       We recognize that Richardson did request the second extension of time at the

eleventh hour and that part of his difficulty in obtaining the transcripts in a timely manner

can be traced to his failure to comply with Bankruptcy Rule 8006. Such behavior is not

excusable, and it is well within the authority of the District Court to impose an

appropriate sanction. However, we have repeatedly held that “dismissals with prejudice

. . . are drastic sanctions, termed ‘extreme’ by the Supreme Court, and are to be reserved

for comparable cases.” Poulis, 747 F.2d at 867-68 (citation omitted). Under the present

circumstances, where Appellant timely requested extensions of time in which to file his

brief, and in fact did file his brief prior to issuance of the District Court’s order, we

conclude that dismissal was not appropriate.

                                               9
      Accordingly, we will vacate the District Court’s order and remand for further

proceedings.




                                          10
