           Case: 16-10211    Date Filed: 12/12/2016   Page: 1 of 8


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10211
                        Non-Argument Calendar
                      ________________________

         D.C. Docket Nos. 0:15-cv-61830-FAM; 14-bkc-11822-RBR



In re: MARY A. TUCKER,


                                                                         Debtor.
_____________________________________________________

MARY A. TUCKER,

                                                             Plaintiff-Appellant,

                                   versus

JP MORGAN CHASE BANK N.A.,

                                                           Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (December 12, 2016)
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Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      The issue in this appeal is whether the district court abused its discretion

when it dismissed pro se Plaintiff-Appellant Mary A. Tucker’s appeal from a

decision of the bankruptcy court for failure to timely file her initial brief. Tucker

appealed to the district court for review of two related decisions of the bankruptcy

court in Tucker’s Chapter 13 bankruptcy proceeding. See 28 U.S.C. § 158(a).

These decisions granted Defendant-Appellee JP Morgan Chase Bank N.A.’s

(“Chase”) motion to lift the automatic stay, see 11 U.S.C. § 362, for the limited

purpose of allowing Chase to proceed with a foreclosure action against Tucker in

Florida state court, and denied Tucker’s motion to vacate the order lifting the stay.

      After filing her notices of appeal, Tucker timely filed with the bankruptcy

clerk a designation of the record on appeal and a statement of the issues to be

presented, as required by Rule 8009(a)(1), Fed. R. Bankr. P. Chase filed its own

designation two weeks later. The bankruptcy clerk then forwarded the completed

record to the district court, in compliance with Rule 8010(b), Fed. R. Bankr. P.

      On November 6, 2015, the district clerk docketed notice of the transmittal of

the bankruptcy record. The docket entry explained the briefing schedule and, in

pertinent part, stated that Tucker had thirty days from the docketing of the notice to

serve and file her initial brief. See Fed. R. Bankr. P. 8018(a)(1) (providing that the


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appellant’s brief is due within thirty days “after the docketing of notice that the

record has been transmitted or is available electronically”). So Tucker’s initial

brief was due on or before December 7.

      On November 16, Tucker filed a “Motion for Stay Pending Appeal or in the

Alternative, an Order Granting a Supersedeas Bond and Resetting Briefing

Schedule.” Tucker’s motion challenged Chase’s standing to obtain stay relief and,

in turn, the bankruptcy court’s jurisdiction to grant Chase such relief. Tucker did

not argue her request for resetting the briefing schedule. The district court denied

Tucker’s motion on November 23, stating, “The Court is not inclined to grant the

requested or alternatively requested relief and expects counsel to comply with all

deadlines.”

      On December 7, the date her brief was due, Tucker filed a motion requesting

an extension of thirty days to file her initial brief. Tucker asked for an extension in

light of the following: (1) the bankruptcy court had not yet ruled on her motion to

strike a document from the record; (2) she was not a lawyer and was representing

herself in several other pending matters, including three other lawsuits; (3) she

needed time to research applicable law and to review the underlying record; and

(4) the holiday season was approaching. Also, Tucker asked the court to clarify

whether its previous order, which was directed to “counsel,” applied to her.




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       On December 11, the district court, having “considered the motions, the

pertinent portions of the record, and being fully advised in the premises,” denied

Tucker’s motion for an extension of time to file her initial brief. The court did not

explain its decision any further.        Five days later, the district court dismissed

Tucker’s appeal because, despite the court’s admonishment that it “expected the

parties to comply with all deadlines,” her brief had not been timely filed. This

appeal followed. We have jurisdiction under 28 U.S.C. § 158(d).

       We review for an abuse of discretion the district court’s dismissal of a

bankruptcy appeal for failure to prosecute. See Pyramid Mobile Homes, Inc. v.

Speake (In re Pyramid Mobile Homes, Inc.), 531 F.2d 743, 746 (5th Cir. 1976)

(affirming district court’s dismissal of bankruptcy appeal pursuant to former

Bankruptcy Rule 801). 1 We review a district court’s decision to deny a request for

an extension of a filing deadline for an abuse of discretion. See Young v. City of

Palm Bay, Fla., 358 F.3d 859, 863 (11th Cir. 2004).

       The abuse-of-discretion standard is deferential and affords a range of choice

to the district court. Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d

1330, 1337 (11th Cir. 2006). Nevertheless, an abuse of discretion occurs if the

court does not apply the proper legal standard, does not follow proper procedures

in making the determination, or relies on clearly erroneous factual findings. Id. In

       1
        This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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cases where the district court applies an improper standard, remand for application

of the correct standard is often appropriate where the decision to be made is not

“one devoid of any room for the exercise of discretionary judgment.” Advanced

Estimating Sys. Inc. v. Riney, 77 F.3d 1322, 1325 (11th Cir. 1996) (remanding for

application of the correct “excusable neglect” standard because “the district court

will often have some range of choice in deciding excusable neglect issues”).

      In a bankruptcy appeal to the district court, the appellant has thirty days to

file a brief “after the docketing of notice that the record has been transmitted or is

available electronically.” Fed. R. Bankr. P. 8018(a)(1). “[I]n its discretion,” the

district court may extend this time “for cause shown” either (1) with or without

motion before the time to act has expired, or (2) on motion made after the time to

act has expired “where the failure to act was the result of excusable neglect.” Fed.

R. Bankr. P. 9006(b)(1); see Rosenberg v. DVI Receivables XIV, LLC, 818 F.3d

1283, 1287–89 (11th Cir. 2016) (explaining that the bankruptcy rules apply to

cases in both the bankruptcy and district courts). If the appellant fails to file a brief

on time or within an extended time authorized by the district court, the court may

dismiss the appeal, either on motion of the appellee or on the court’s own motion

after providing notice to the appellant. Fed. R. Bankr. P. 8018(a)(4).

      In general, dismissal for failure to prosecute an appeal “is discretionary and

should be considered in light of the prejudicial effect of delay on the appellee and


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the bona fides of the appellant.” In re Pyramid Mobile Homes, Inc., 531 F.2d at

746. Rule 8018(a)(4) authorizes dismissal for failure to file a brief on time, but we

have concluded that “routine dismissal for failure to timely file briefs” is not

appropriate. Brake v. Tavormina (In re Beverly Mfg. Corp.), 778 F.2d 666, 667

(11th Cir. 1985) (rejecting the appellee’s position that this Court adopt a “stringent

rule of dismissal for failure to timely file briefs”). Rather, “dismissal is proper

only when bad faith, negligence or indifference has been shown.” Id.

      We adopted this “flexible standard”—requiring bad faith, negligence, or

indifference for dismissal—in In re Beverly Manufacturing Corp. for two main

reasons. First, it was consistent with our approach in non-bankruptcy litigation,

where we had held that the failure to timely file briefs “is merely a ‘non-

jurisdictional defect in the prosecution of [an] appeal,’ and such defect does not

require dismissal in every case.” Id. (quoting Marcaida v. Rascoe, 569 F.2d 828,

830 (5th Cir. 1978) (“[T]he late filing of briefs is at most (a) non-jurisdictional

(defect) in the prosecution of (t)his appeal, which we consider insufficient to

warrant dismissal.” (internal quotation marks omitted)).

      Second, we found that the flexible standard better serves the policy

underlying the rule requiring timely filing of briefs, which is simply “to encourage

swift prosecution of appeals.” Id. “Dismissal typically occurs in cases showing

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


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the mere filing of a notice of appeal.” Id. at 667; In re Pyramid Mobile Homes,

Inc., 531 F.2d at 745–46 (concluding that dismissal was appropriate where the

appellant made “no effort to comply with the Rules” for over four months after

filing its appeal). But a slight lack of diligence on the part of the appellant may not

be sufficient to warrant dismissal. See In re Pyramid Mobile Homes, Inc., 531

F.2d at 746 (finding that the appellant’s conduct “crossed the line from lack of

diligence to obstinately dilatory conduct”); see also In re Beverly Mfg. Corp., 778

F.2d at 667 (remanding where the “appellant took all steps necessary for

prosecution of the appeal except that of filing the brief,” and where the appellant

offered a reasonable explanation for why he failed to inquire of the status of his

case for seven months).

      Here, the district court abused its discretion by applying an incorrect

standard. See Heffner, 443 F.3d at 1337. The dismissal order reflects application

of a “stringent rule of dismissal for failure to timely file briefs” that is inconsistent

with the “flexible standard” we adopted in In re Beverly Manufacturing Corp. The

simple fact that Tucker failed to file a single brief on time is insufficient to support

a dismissal. Rather, “dismissal is proper only when bad faith, negligence or

indifference has been shown.” In re Beverly Mfg. Corp., 778 F.2d at 667. The

court did not expressly find that any of these grounds had been shown. Nor did the




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court otherwise evaluate Tucker’s reasons for seeking an extension of time or the

prejudice to Chase. See Pyramid Mobile Homes, Inc., 531 F.2d at 746.

      Although the district court noted that Tucker had failed to heed its warning

that it expected her to comply with all deadlines, we cannot conclude that the court

implicitly found that Tucker had shown bad faith, negligence, or indifference, as

contemplated in In re Beverly Manufacturing Corp. And significantly, the court’s

order did not provide clear notice that the court would dismiss her appeal if she

failed to file her brief by the original deadline.         So Tucker’s request for an

extension does not appear to be in blatant disregard of the court’s warning. In

addition, Tucker’s filing of a motion for an extension of time to file her brief, as

provided in Rule 9006(b)(1), Fed. R. Bankr. P., before the expiration of the

deadline can itself be construed as an attempt to comply with the relevant

deadlines. Plus, the court’s failure to provide clear notice of its intent to dismiss if

Tucker failed to timely file her brief raises a question of whether the court

complied with Rule 8018(a)(4)’s requirement that any dismissal on the court’s own

motion occur “after notice.”

      Accordingly, we vacate the judgment dismissing Tucker’s appeal and we

remand to the district court for further proceedings.

      VACATED AND REMANDED.




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