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In Re: Tenell Dalton

August 23, 2012

IN RE: TENELL DALTON, APPELLANT.
ONEWEST BANK, FSB, OR ITS SUCCESSOR OR ASSIGNEE,
APPELLEE,



Bankruptcy No. 12-20004 (JKF)

The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

MEMORANDUM ORDER

AND NOW, this 23rd day of August, 2012, upon consideration of the Motion for Reconsideration and Motion for Leave to Submit Designation of the Record and Statement of the Issues Nunc Pro Tunc by Appellant Tenell Dalton (Docket No. [3]),

IT IS HEREBY ORDERED that the Motion [3] is GRANTED, IN PART, and DENIED, IN PART. In so holding, the Court notes the following:

1. Appellant's Motion [3] is granted to the extent that the Court will reconsider its August 21, 2012 Order and evaluate the six factors under Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984) prior to dismissing the present matter, i.e., 1) the extent of the party's personal responsibility; 2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; 3) a history of dilatoriness; 4) whether the conduct of the party or the attorney was willful or in bad faith; 5) the effectiveness of sanctions other than dismissal; and 6) the meritoriousness of the claim or defense. See in re Mondelli, 349 F. App'x 731, 732-33 (3d Cir. 2009). It is well-settled that although a court must weigh each of the six factors, it is not necessary to find that all six factors are present prior to dismissing the action. See Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). The Court will also discuss the contention of Appellant's Counsel that his failure to prosecute this appeal constitutes "excusable neglect" under Pioneer Inv. Serv. Co. v. Brunswick Assocs. P'ship,507 U.S. 380 (1993). In this Court's estimation, after applying the Poulis factors and considering the arguments as to "excusable neglect" in the manner described below, dismissal of this case remains appropriate.

a. Party's Personal Responsibility

The Court first finds that, based on his representations in the present motion, Appellant's Counsel was solely responsible for failing to timely file the required documents before the Bankruptcy Court under Rule 8006 of the Federal Rules of Bankruptcy Procedure. (See Docket No. 3). While there is no evidence that Appellant Tenell Dalton was responsible for the failures of Appellant's counsel, the notices sent by the Bankruptcy Clerk, which are more fully described below, show that they were mailed to Dalton at 126 Broadcrest Drive, Pittsburgh PA 15237-1017.*fn1 (Docket Nos. 1-16, 1-17, 1-22, 1-23). Thus, Appellant was presumably aware of counsel's failures to perfect the appeal in this case and could have taken action to ensure that counsel was properly handling his case. This factor weighs slightly in favor of Appellant, because prosecution of the appeal was ultimately counsel's responsibility. However, this factor is not dispositive "because a client cannot always avoid the consequences of the acts or omissions of [his or her] counsel." See Poulis, 747 F.2d at 868.

b. Prejudice to the Adversary

Appellant's Counsel suggests that the only possible prejudice to Appellee is the delay caused by his dilatoriness. (Docket No. 3). Prejudice generally equates to "the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party." Briscoe v. Klaus, 538 F.3d 252, 259 (3d Cir. 2008). In the context of the instant appeal, the Appellee has not sustained this type of prejudice. But, "irremediable harm" is not required. See Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003) (holding that "irremediable harm" is not required). Indeed, the failure of Appellant to file his statement of issues on appeal has prevented Appellee from preparing any litigation strategy to counter the appeal, which is sufficient to find some prejudice against Appellee. Cf. Ware, 322 F.3d at 222 ("the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial."). Moreover, Appellant's filing of a statement of issues on appeal in conjunction with the present motion has not cured this prejudice because there is no certificate of service attached to the motion demonstrating that this pleading has been served on the opposing party. (See Docket No. 3, generally).

In addition, the Appellee prevailed before the Bankruptcy Court on the disputed issues in this case and the finality of such judgments is generally furthered by setting forth deadlines for the prosecution of any appeals. See Fed.R.Bankr.P. 8006. Obviously, a full record is needed to litigate an appeal. As is discussed below, the Local Rules for the Western District of Pennsylvania reflect these principles by requiring parties to fully prepare their appeals prior to transmission to this Court. W.D.Pa.LCvR 8007-2.B.3. Appellant's Counsel failed to fully prepare the appeal in this case and the record on appeal is now closed, undermining these principles and prejudicing the Appellee.

Given these competing considerations, the Court finds that this factor weighs slightly in favor of Appellee.

c. History of Dilatoriness

The record demonstrates that Appellant failed to timely meet the requirements of Rule 8006 to perfect the appeal before the Bankruptcy Court and did not seek any extensions of time to submit the required documents. (See Docket No. 1 and attachments). This factor weighs heavily against Appellant given the repeated dilatory conduct in failing to prosecute the instant appeal or follow the time limits set forth in the Local Rules and Rules of Bankruptcy Procedure. "Time limits imposed by the rules and the court serve an important purpose for the expeditious processing of litigation. If compliance is not feasible, a timely request for an extension should be made to the court." Poulis, 747, F.2d at 686.

In the present motion, counsel suggests that the delay in this case amounted to only 15 days because the deadlines were extended by the Clerk of Court through certain correspondence sent to him. (Docket No. 3 at ΒΆ 26). The Court finds this to be an affront to the Bankruptcy Court's authority and devoid of any support in the record. The record clearly shows that counsel never sought leave of court to extend any deadlines but that the Clerk of Court repeatedly advised him that his filings were deficient and warned of certain action to be taken against Appellant, including dismissal of the appeal, if counsel did not act within a certain time period. (See Docket No. 1 and attachments). A review of the ...


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