     Case: 13-40512      Document: 00512485407         Page: 1    Date Filed: 12/31/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 13-40512                        December 31, 2013
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
In the Matter of: HOWARD D. KOLLINGER,

                                                 Debtor.

HOWARD D. KOLLINGER,

                                                 Appellant,

v.

R. MARK HOYLE,

                                                 Appellee.


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CV-675



Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Howard D. Kollinger appeals the district court’s dismissal of his appeal
from the bankruptcy court for failing to file a timely appellate brief. We affirm.

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       I
      This appeal arises out of an adversary proceeding filed by appellee R.
Mark Hoyle against appellant Howard D. Kollinger as part of Kollinger’s
Chapter 7 bankruptcy case. This adversary proceeding was tried before the
bankruptcy court and judgment was entered in favor of Hoyle on August 30,
2011. On September 9, Kollinger filed a timely Notice of Appeal with the
bankruptcy court. A few days later, Kollinger also timely designated items to
be included in the record on appeal. On October 20, 2011 the bankruptcy court
docketed a Transmittal of Record on Appeal to the U.S. District Court for the
Eastern District of Texas. That same day, the district court received the Notice
of Appeal, the parties’ designations of the record on appeal, and an official
transcript of the bankruptcy court’s proceedings from the bankruptcy court.
These documents were entered on the docket of the district court on October
23, 2011.
      Electronic notice was served on Kollinger’s counsel, Bretton Gerard, but
the nature and effectiveness of that notice is not entirely clear. From Gerard’s
first appearance as counsel for Kollinger in the underlying case, Gerard
changed law firms four different times and used or registered five different
email addresses with the bankruptcy court. However, throughout this time
Gerard did not update his contact information with the district court.
According to the Case Management/Electronic Case Files (CM/ECF), on
October 20, the bankruptcy court sent electronic notice of the transmittal of
the record to two email addresses: bgerard@fishmanjackson.com and
brettongerard@gmail.com. Both of these email accounts seem to have been
active at the time. The Gmail account was listed on the Motion to Reopen the
Appeal in the district court and the Notice of Appeal to the Fifth Circuit filed


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in the instant proceeding. The Fishman Jackson email address was listed on
the notice of appeal from the bankruptcy court filed on September 9, 2011.
         On October 23, the district court sent electronic notice of the docketing
of the appeal, this time to the email address on file with the district court
clerk’s office: gerard@gslb.com. In his affidavit, Gerard states that he left
Gerard Singer Levick & Busch, the namesake of the gslb.com email address,
in August 2007. This means that the address on file with the district court was
at least four years old but was never updated by Gerard. Gerard’s affidavit
states that he contacted the district court in November 2011 to “inquire about
the procedure involved in docketing the appeal” and was told by the clerk to
“check back with the Court after the first of the year for more information.”
The district court has no record of this inquiry, but regardless, Gerard did not
contact the district court again.
         Nothing further transpired for the next nine months. Gerard never filed
a brief or a motion with the court asking for an extension of time to file a brief.
On July 30, 2012, the judicial assistant for the district court judge contacted
both parties and instructed them to “please file [their] briefs immediately.”
The deadline for filing a brief had expired on November 6, 2011. 1 Gerard
responded that he was on vacation but could file a brief by August 22, a full
ten months after the appeal was docketed. On August 9, 2012, the district
court entered an Order of Dismissal for Want of Prosecution. Gerard filed a
Motion to Reopen the Appeal, but the district court denied the motion. This
appeal followed. Currently, the Chapter 7 Trustee in the Kollinger bankruptcy
case awaits the outcome of this appeal before he will make distributions to
Kollinger’s creditors and close the bankruptcy estate.


1   See FED. R. BANKR. P. 8009(a)(1).
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                                                II
           We have previously held that dismissal of an appeal is a “harsh and
drastic sanction.” 2 But we have also held that this court will only overturn a
district court’s dismissal of an appeal if the district court abused its discretion,
by applying an erroneous view of the law. 3 Further, in reviewing a district
court’s dismissal of an appeal for non-jurisdictional defects under Federal Rule
of Bankruptcy Procedure 8001(a), this court must pay special attention to “the
prejudicial effect of delay on the appellees and the bona fides of the appellant.” 4
With this in mind, we hold that the district court did not abuse its discretion
in dismissing the appeal after Kollinger failed to file a brief for nearly ten
months after the appeal was docketed.
                                                III
           Federal Rule of Bankruptcy Procedure 8001(a) vests district courts with
the discretion to dismiss an appeal. 5 It states that “[a]n appellant’s failure to
take any step other than timely filing 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.” 6 Rule
8009(a)(1) requires that the “appellant shall serve and file a brief within 14
days after entry of the appeal on the docket pursuant to Rule 8007.” 7 Rule
8007(b) states that after receiving the record for appeal, the district court clerk
“shall enter the appeal in the docket and give notice promptly to all parties to


2   In re CPDC Inc., 221 F.3d 693, 699 (5th Cir. 2000).
3   Id. at 698.
4   Id. (quoting In re Braniff Airways, Inc., 774 F.2d 1303, 1304 (5th Cir. 1985)).
5   FED. R. BANKR. P. 8001(a).
6   Id.
7   Id. 8009(a)(1).
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the judgment.” 8 Reading these rules together, a district court has discretion
to dismiss an appeal if the appellant has failed to file a brief within 14 days
after entry of the appeal on the docket and after notice has been sent by the
clerk. Here, the case was entered on the docket on October 23, 2011.
         Kollinger contends that his clock to file the appeal never ran out because
it could not start running until he—or his counsel—received actual notice of
the docketing of the appeal with the district court. Kollinger concludes that
because his counsel, Gerard, did not receive actual notice until the district
court clerk called him on July 30, 2012, his brief was not late when the case
was dismissed on August 9. This argument fails.
         First, Gerard’s failure to receive the notice was entirely of his own
making. Eastern District of Texas Local Rule CV-5(a)(3) provides that,
         (A) Electronic transmission of a document to the Electronic Filing
         System consistent with these rules, together with the transmission
         of a Notice of Electronic Filing from the court, constitutes filing of
         the document for all purposes and constitutes entry of the
         document on the docket kept by the clerk. . . .

         (C) Service is deemed completed at the “entered on” date and time
         stated on the Notice of Electronic Filing from the court . . . . 9


         Electronic notices of the entries on the district court’s docket were sent
to Kollinger’s counsel, Gerard, via the email address on file with the clerk’s
office. While Gerard’s affidavit states that he no longer used this email address
at that time, the responsibility to update his contact information falls squarely
on him.        The time limits provided by the Federal Rules of Bankruptcy
Procedure are designed so that bankruptcy proceedings may be resolved


8   Id. 8007(b).
9   E.D. TEX. R. CV-5(a)(3).
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expeditiously. It cannot be that the time limits are indefinitely suspended
whenever counsel for a party changes his contact information without notifying
the court. In fact, the local rules in the district court imposed an affirmative
duty on Gerard to “maintain [his] own account information, including changes
in email address.” 10 This comports with this court’s precedent, which levies on
parties “a duty of diligence to inquire about the status of a case,” 11 as well as
the text of Rule 8007(b) which mandates only that the district court shall “give
notice,” not that the notice be effectively received by the parties. 12
          Further, even if the district court failed to ensure that Gerard received
notice, the bankruptcy court had supplied him with notice. The bankruptcy
court emailed his still active email accounts to alert him that it had
transmitted the records to the district court. Any prudent lawyer would be
aware that docketing of the appeal was imminent at that point, but Gerard
evidently made no effort to check whether his appeal had been docketed.
Gerard’s affidavit states that he contacted the district court clerk in November
2011 and was told to check back after “the first of the year for more
information.” Yet Gerard never checked back after the first of the year and
made no effort in the appeal until he was contacted by the district court judicial
assistant eight months later. 13


10   E.D. TEX. R. CV-5(a)(2)(A).
11   Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 357 (5th Cir. 1993).
12FED. R. BANKR. P. 8007(b); cf. United States v. Ekong, 518 F.3d 285, 287 (5th Cir. 2007)
(“Proof that a letter properly directed was placed in a U.S. post office mail receptacle creates
a presumption that it reached its destination . . . and was actually received by the person to
whom it was addressed.”) (internal quotation marks omitted).
13 Even if the time limits ran from the date that the judicial assistant called Gerard to ask
him about his brief, on July 30, 2012, the time still would have expired before Gerard would
have filed his brief. In that phone conversation Gerard stated that he would not be able to
file a brief until August 22, 2012—still outside of the time window of Rule 8009(a)(1).
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            Kollinger’s reliance on Jewelcor Inc. v. Asia Commercial Co. 14 is
misplaced.         In Jewelcor, the Third Circuit reversed the dismissal of a
bankruptcy appeal for failing to file a brief. 15 But in that case, the district
court had failed to send any notice at all. 16 Here, the district court sent
notice—Gerard just failed to receive it because he had not updated his contact
information with the district court. Further, the brief in Jewelcor was merely
a few weeks late. 17 Here, the appeal was not dismissed until ten months after
the case was docketed. Upholding the dismissal here is in accord with previous
cases in which this court has affirmed dismissals of bankruptcy appeals when
an attorney failed to file a brief for months, 18 and failed to provide the court
with a timely copy of the trial record. 19
            While it is true that some mistakes are excusable, as this court is
reluctant to punish the client for the mistakes of his attorney, no excuse
justifies failing to file a brief for ten months. In determining whether an
attorney’s failure is the product of excusable neglect, we consider “the danger
of prejudice to [the appellee], the length of the delay and its potential impact
on judicial proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the movant acted in
good faith.” 20 Here, the delay was lengthy, it was solely the fault of the
attorney, and any relief from dismissal would prejudice the creditors of the


14   11 F.3d 394 (3d Cir. 1993).
15   Jewelcor, 11 F.3d at 398-99.
16   Id. at 396.
17   Id.
18   In re Braniff Airways, Inc., 774 F.2d 1303, 1304 (5th Cir. 1985).
19   Pyramid Mobile Homes, Inc. v. Speake, 531 F.2d 743, 746 (5th Cir. 1976).
20   Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).
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bankruptcy estate—who are waiting on this appeal “to run its course” before
they can receive distributions from the bankruptcy trustee.               Here, “as in
virtually any bankruptcy proceeding, time is the essence of prejudice to
creditors.” 21 Accordingly, we hold that the district court did not abuse its
discretion in dismissing the appeal.
                                     *        *    *


         AFFIRMED.




21   Pyramid Mobile Homes, 531 F.2d at 746.
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