                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        MAR 18 2004
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 In re: DAVID NOVAK,

                Debtor.                                 No. 03-3220
 -------------------------------------
 DAVID NOVAK; ESTATE OF                                 (D. Kansas)
 DR. ALFRED NOVAK, by his
 authorized agent David Novak,                 (D.C. No. 03-CV-2013-GTV)

                Appellants.


                              ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      David Novak, proceeding pro se and in forma pauperis, 1 appeals the district

court’s dismissal of his appeal from a decision of the bankruptcy court for failure

to prosecute. This court affirms.

      On June 13, 2003, the district court issued an order to show cause why

Novak’s bankruptcy appeal should not be dismissed for failure to prosecute. In

response, Novak indicated that he had already filed appellate briefs in connection

with two cases pending in this court. On July 8, 2003, the district court entered

an order affirming the bankruptcy court and closing the case. In that order, the

district court noted that it had previously explained to Novak that the cases then

pending in the Tenth Circuit were entirely distinct from the appeal pending before

the district court. Because the filing of briefs in this court had no bearing on

Novak’s failure to timely file an appeal brief in this particular matter, the district

court concluded that Novak had failed to show good cause for his failure to

prosecute this case. Because Novak had offered no valid excuse for his failure to

prosecute this case and because there were no valid grounds for reversing the

bankruptcy court’s order, the district court affirmed the bankruptcy court and

closed the case.

      On appeal, Novak’s sole contention is that the district court was wrong in

asserting that it had previously indicated that this case was independent of the


      1
          This court grants Novak’s request to proceed on appeal in forma pauperis.

                                          -2-
cases before the Tenth Circuit and that the district court had a duty to clear up the

confusion. Novak’s contention is not borne out by the record. In an order issued

by the district court on March 27, 2003, the district court specifically informed

Novak that this case was unrelated to the two cases that were pending before this

court and further informed Novak that all further pleadings in this case should

reflect the proper case number. Accordingly, Novak is simply wrong in asserting

that he was never informed that this case was separate from other bankruptcy

matters pending on appeal before this court. Novak has failed to demonstrate that

the district court abused its discretion in deciding the appeal solely on the basis of

the bankruptcy court’s order without allowing him to file a brief out of time and

has not even contested the merits of the district court’s decision.

      For those reasons set out above, the order of the United States District

Court for the District of Kansas is hereby AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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