                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 21 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



In the Matter of: REED E. SLATKIN,               No. 09-55759
Substantively Consolidated Affilates
TOPSIGHT OREGON, INC. and REED                   D.C. No. 2:08-cv-03358-RSWL
SLATKIN INVESTMENT CLUB, L.P.
(Reorganized Debtors),
                                                 MEMORANDUM *
              Debtor.


DONALD L. SIMONS, and KAREN A.
SIMONS, a.k.a Karen Ritz,

              Appellants,

  v.

R. TODD NEILSON, Trustees of the
Chapter 11 Bankruptcy Estate of Reed E.
Slatkin,

              Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    Ronald S.W. Lew, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                              Submitted May 25, 2010 **


Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

      Donald L. and Karen A. Simons appeal from the district court’s order

dismissing their appeal from the bankruptcy court’s summary judgment against

them in an adversary proceeding. We have jurisdiction pursuant to 28 U.S.C.

§ 158(d). We review for an abuse of discretion the dismissal of an appeal for

failure to prosecute, Nat’l Bank of Long Beach v. Donovan (In re Donovan), 871

F.2d 807, 808 (9th Cir. 1989), and we reverse and remand.

      The district court dismissed sua sponte after the Simonses failed to timely

file documents in support of their appeal. However, the Simonses had requested a

short extension to file their opening brief, the court failed to warn of dismissal or to

consider less drastic sanctions, and there was no showing of prejudice to the

appellee. Thus, we reverse and remand. See id. at 808-09 (concluding that

dismissal of appeal was an abuse of discretion where Bankruptcy Appellate Panel

failed to consider alternative sanctions); Moneymaker v. CoBen (In re Eisen), 31

F.3d 1447, 1451 (9th Cir. 1994) (explaining five factors courts must consider

before dismissal, including prejudice to opposing party and alternative sanctions,


          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                           2                                     09-55759
and noting that in sua sponte dismissals “there is a closer focus on the failure to

consider less drastic alternatives and the lack of warning of imminent dismissal”

(internal quotation marks and citation omitted)).

      REVERSED and REMANDED.




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