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    Lundahl v. Eves, 10th Cir. (2004)

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    The United States Court of Appeals for the Tenth Circuit affirmed the decision of the United States Bankruptcy Appellate Panel of the Tenth Circuit to dismiss Holli Lundahl's bankruptcy appeal for failure to prosecute. Specifically, Lundahl failed to file documents required by the Federal Rules of Bankruptcy Procedure and the local rules of the Tenth Circuit BAP, including designation of the record, a statement of issues, and a statement of interested parties, despite being warned that failure to do so could result in dismissal. The Tenth Circuit concluded that the BAP did not abuse its discretion in dismissing the appeal for Lundahl's failure to follow procedural rules.

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    Lundahl v. Eves, 10th Cir. (2004)

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    The United States Court of Appeals for the Tenth Circuit affirmed the decision of the United States Bankruptcy Appellate Panel of the Tenth Circuit to dismiss Holli Lundahl's bankruptcy appeal for failure to prosecute. Specifically, Lundahl failed to file documents required by the Federal Rules of Bankruptcy Procedure and the local rules of the Tenth Circuit BAP, including designation of the record, a statement of issues, and a statement of interested parties, despite being warned that failure to do so could result in dismissal. The Tenth Circuit concluded that the BAP did not abuse its discretion in dismissing the appeal for Lundahl's failure to follow procedural rules.

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    Filed: 2004-07-01 Precedential Status: Precedential Docket: 04-4040

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    The United States Court of Appeals for the Tenth Circuit affirmed the decision of the United States Bankruptcy Appellate Panel of the Tenth Circuit to dismiss Holli Lundahl's bankruptcy appeal for failure to prosecute. Specifically, Lundahl failed to file documents required by the Federal Rules of Bankruptcy Procedure and the local rules of the Tenth Circuit BAP, including designation of the record, a statement of issues, and a statement of interested parties, despite being warned that failure to do so could result in dismissal. The Tenth Circuit concluded that the BAP did not abuse its discretion in dismissing the appeal for Lundahl's failure to follow procedural rules.

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    22 views5 pages

    Lundahl v. Eves, 10th Cir. (2004)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit affirmed the decision of the United States Bankruptcy Appellate Panel of the Tenth Circuit to dismiss Holli Lundahl's bankruptcy appeal for failure to prosecute. Specifically, Lundahl failed to file documents required by the Federal Rules of Bankruptcy Procedure and the local rules of the Tenth Circuit BAP, including designation of the record, a statement of issues, and a statement of interested parties, despite being warned that failure to do so could result in dismissal. The Tenth Circuit concluded that the BAP did not abuse its discretion in dismissing the appeal for Lundahl's failure to follow procedural rules.

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    of 5

    F I L E D

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS

    SEP 23 2004

    TENTH CIRCUIT

    PATRICK FISHER
    Clerk

    In Re: HOLLI LUNDAHL,


    Debtor.
    HOLLI LUNDAHL,
    Plaintiff-Appellant,
    v.
    PAUL EVES; JOYLENE EVES;
    ROBERT HAMMON; BENLEY
    WILSON; CONNIE SMITH JOLLEY;
    HIDDEN VALE MGT. CO., INC.;
    DOES 1 THROUGH 100,

    No. 04-4040
    (BAP No. UT-04-005)
    (Utah)

    Defendants-Appellees.

    ORDER *
    Before SEYMOUR, LUCERO, and OBRIEN, Circuit Judges.
    Holli Lundahl, appearing pro se, appeals the order of the United States
    Bankruptcy Appellate Panel of the Tenth Circuit (BAP) dismissing her bankruptcy
    After examining appellants brief and the appellate record, this panel has
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
    34.1(G).
    *

    appeal for failure to prosecute. The BAP found that Ms. Lundahl neither
    designated the record on appeal nor filed a statement of the issues to be raised.
    See F ED . R. B ANKR . P. 8006; 10 TH C IR . BAP L.R. 8006-1(b). Furthermore, Ms.
    Lundahl failed to file a statement of interested parties. See 10 TH C IR . BAP L.R.
    8018-3. Accordingly, the court exercised its authority under F ED . R. B ANKR . P.
    8001(a) and 10 TH C IR . BAP L.R. 8018-4 to dismiss the case for failure to
    prosecute. We affirm the BAPs determination that dismissal was warranted and
    deny Ms. Lundahls motion to proceed in forma pauperis.
    On December 24, 2003, the bankruptcy court entered an order dismissing
    an adversary proceeding brought by Ms. Lundahl. Ms. Lundahl filed a timely
    notice of appeal to the BAP but her notice was not accompanied by the required
    filing and docketing fees. She subsequently filed an Application to Proceed
    Without Prepayment of Fees, which the court denied.
    Within ten days after filing a notice of appeal, an appellant is directed by
    Federal Bankruptcy Rule 8006 to file with the clerk of the bankruptcy court a
    designation of the items to be included in the record and a statement of the issues
    to be presented. F ED . R. B ANKR . P. 8006. BAP Rule 8018-3(f) requires an
    appellant to file a statement of interested parties within ten days after notice that
    the appeal has been docketed with the BAP, or when a party files a motion with
    the BAP, whichever is earlier. The BAP issued a notice that the appeal had been
    -2-

    docketed and set forth a filing deadline of January 20, 2004, for a statement of
    interested parties, a designation of record, and a statement of issues. The
    deadline expired and Ms. Lundahl failed to file the required papers.
    The BAP sent a Notice of Deficiency and Order to Show Cause, requiring
    Ms. Lundahl to: (1) file a statement of interested parties pursuant to 10 TH C IR .
    BAP L.R. 8018-3; (2) file a copy of the designation of record in accordance with
    Bankruptcy Rule 8006; and (3) file a copy of the statement of issues in
    accordance with Bankruptcy Rule 8006. The BAP concomitantly warned Ms.
    Lundahl that failure to comport with the court order would result in dismissal of
    her appeal. Ms. Lundahl did not respond. Accordingly, the BAP dismissed the
    appeal for failure to prosecute. Ms. Lundahl then filed a motion to recall the
    BAPs mandate, which the court denied. This appeal followed.
    We review a dismissal for failure to prosecute under an abuse of discretion
    standard. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (finding no abuse
    of discretion in dismissing pro se bankruptcy appeal for failure to designate
    record on appeal, failure to file statement of issues to be raised, and failure to file
    timely brief).
    The authority of a court to dismiss sua sponte for lack of prosecution
    has generally been considered an inherent power, governed not by
    rule or statute but by the control necessarily vested in courts to
    manage their own affairs so as to achieve the orderly and expeditious
    disposition of cases.
    -3-

    Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). Dismissal for failure to
    prosecute should be imposed only after careful exercise of judicial discretion.
    See DeBardeleben v. Quinlan, 937 F.2d 502, 504 (10th Cir. 1991). Nonetheless,
    dismissal is an appropriate disposition against a party who disregards court orders
    and fails to proceed as required by court rules. Natl Hockey League v. Metro.
    Hockey Club, Inc., 427 U.S. 639, 642-43 (1976).
    The BAP had the authority to take action it deemed appropriate, including
    dismissal, in response to Ms. Lundahls failure to comply with court orders and
    the procedures demanded by the Bankruptcy Rules. F ED . R. B ANKR . P. 8001(a).
    Ms. Lundahl does not dispute her failure to comply with the applicable rules for
    prosecution of her appeal. She has not paid the requisite filing and docketing
    fees. The statement of interested parties, designation of record, and statement of
    issues have still not been filed. Moreover, Ms. Lundahl concedes that the BAP
    effectively warned her of the possibility of dismissal in its issuance of the Notice
    of Deficiency and Order to Show Cause on January 22, 2004. Aplt. Br. at 3-4.
    Ms. Lundahls sole contention before this court is that the BAPs dismissal
    of her appeal is void for want of jurisdiction. She specifically asserts that the
    BAP lacked jurisdiction over her appeal because the bankruptcy trial court lacked
    jurisdiction to enter the order dismissing the adversary proceeding. Ms.
    Lundahls jurisdictional argument fails. Pursuant to 28 U.S.C. 158(a), the BAP
    -4-

    had jurisdiction over Ms. Lundahls appeal. The bankruptcy courts order
    disposed of her adversary proceeding and is a final order subject to appeal. 28
    U.S.C. 158(a)(1). Likewise, Ms. Lundahl consented to the BAPs jurisdiction
    by filing a timely notice of appeal and failing to elect to have the appeal heard by
    a district court. 28 U.S.C. 158(c)(1); F ED . R. B ANKR . P. 8001; 10 TH C IR . BAP
    L.R. 8001-1. In sum, the BAP had jurisdiction over Ms. Lundahls appeal.
    Pro se parties must follow the applicable rules of federal procedure. Hunt
    v. Uphoff, 199 F.3d 1220, 1223 (10th Cir. 1999); Nielsen, 17 F.3d at 1277. The
    BAP did not abuse its discretion in dismissing Ms. Lundahls appeal.
    For the reasons stated above, we DENY Ms. Lundahls motion to proceed
    in forma pauperis and AFFIRM the BAPs dismissal for failure to prosecute.

    ENTERED FOR THE COURT


    Stephanie K. Seymour
    United States Circuit Judge

    -5-

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