                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-2025



In Re:   LISA ANNETTE BROADNAX,

                                                             Debtor.

------------------------------

LISA ANNETTE BROADNAX,


                                             Plaintiff - Appellant,

           versus


FRANK J. SANTORO,

                                              Defendant - Appellee,

           versus

US TRUSTEE,

                                                 Party in Interest.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CA-04-349; BK-02-72575-DHA)


Submitted:    January 31, 2005              Decided:   March 3, 2005


Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.
Lisa Annette Broadnax, Appellant Pro Se.       Kelly M. Barnhart,
MARCUS, SANTORO & KOZAK, P.C., Chesapeake, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

              Lisa Broadnax appeals from the district court’s order

dismissing her appeal from a bankruptcy court order for failure to

file an appellate brief in accordance with Fed. R. Bankr. P. 8009.

We   vacate    the    district   court’s   order   and   remand   for    further

proceedings.

              Broadnax’s appeal was docketed in the district court on

June 8, 2004.        On June 15, 2004, Broadnax filed a “Request to Amend

Appeal Brief Filed on 5/20/04”, along with an “Amended Appeal

Brief.”    On July 19, the district court denied Broadnax’s motion.

On August 5, the district court dismissed Broadnax’s appeal for

failure to file a brief in accordance with Rule 8009.                   Broadnax

noted a timely appeal to this court.

              We find that Broadnax’s “Amended Appeal Brief,” filed

within the requisite fifteen days after her appeal was docketed

(see Fed. R. Bankr. P. 8009), should have been considered as her

appeal brief.         Although Broadnax’s motion references an original

appeal brief filed on May 20, 2004, that brief is not in the

record.    Broadnax may have been confused or the brief may have been

lost.     In the absence of an original brief, Broadnax’s amended

brief should have been accepted as her brief.

              Even if Broadnax had filed no brief at all, the district

court’s dismissal of her appeal was an abuse of discretion.                 Rule

8009 provides that an appellant must serve and file a brief within


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fifteen days after entry of the appeal on the docket. Accordingly,

Broadnax’s brief was due by June 23, 2004.               However, adherence to

Rule 8009 is non-jurisdictional.          See Bankr. R. 8001(a) (providing

that an appellant’s failure to “take any step other than the timely

filing of 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”).

     The district court thus has the discretion to dismiss an

appeal   if    the   appellant   fails    to    comply    with   the   procedural

requirements of the bankruptcy rules, including failing to meet the

time limits for filing an appeal brief.             To determine whether to

dismiss a bankruptcy appeal for failure to timely file a brief, the

district court must exercise its discretion under Bankruptcy Rule

8001(a).      In re SPR Corp., 45 F.3d 70, 74 (4th Cir. 1995).                  In

applying Rule 8001(a), the district court must take one of the four

steps outlined in In re Serra Builders, Inc., 970 F.2d 1309 (4th

Cir. 1992).     Specifically, the 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 the district court must not impose lightly.” Id. at


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1311.   Proper application of the Serra Builders test requires the

court to consider and balance all relevant factors.          SPR Corp., 45

F.3d at 74.

           Here, the district court failed to consider any of these

factors.   The district court’s failure to exercise its discretion

in accordance with Serra Builders and SPR Corp. amounts to an abuse

of its discretion.      See James v. Jacobson, 6 F.3d 233, 239 (4th

Cir. 1993) (stating that abuse of discretion may occur by failure

to exercise discretion, failure to take into account judicially

recognized    factors   constraining      exercise   of    discretion,   or

erroneous factual or legal premises).

           Accordingly,    we   vacate    the   district    court’s   order

dismissing Broadnax’s appeal and remand for further proceedings

consistent with this opinion.          We deny Broadnax’s motion for

sanctions and 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.

                                                     VACATED AND REMANDED




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