United States District Court, W.D. Virginia, Roanoke Division
January 3, 2017
BARBARA MARIE GALLAHER, Appellant,
GINGER LARGEN, Trustee, Appellee.
Glen E. Conrad Chief United States District Judge
matter is before the court on appeal from the United States
Bankruptcy Court for the Western District of Virginia. For
the following reasons, the appeal will be dismissed pursuant
to Rule 8003(a)(2) of the Federal Rules of Bankruptcy
November 7, 2016, the bankruptcy court denied Barbara Marie
Gallaher's motion for entry of an order vacating a
judgment lien. On November 15, 2016, Gallaher filed a notice
of appeal from the bankruptcy court's decision. The
appeal was transmitted to this court on November 30, 2016.
The transmittal notice indicated that Gallaher had not paid
the required filing fee. Additionally, Gallaher failed to
file a designation of the items to be included in the record
on appeal and a statement of the issues to be presented to
this court, as required by Federal Rule of Bankruptcy
December 16, 2016, this court entered an order requiring
Gallaher to show cause why her appeal should not be dismissed
for failure to timely comply with the procedural
prerequisites for prosecuting her appeal. She was given
fourteen days to remedy the deficiencies outlined in the
order or provide good cause for her failure to do so.
Gallaher was advised that failure to comply with the order
would result in dismissal of the appeal.
the order was entered, the bankruptcy clerk located a check
that Gallaher had mailed to the bankruptcy court. However,
the bankruptcy clerk was unable to process the check because
Gallaher, believing that it was lost, had requested that the
bank stop payment on the check. Gallaher recently advised the
bankruptcy clerk that she is not going to submit a
replacement check or file anything further in the case. She
has not filed a response to the court's previous order
and the time for doing so has expired.
8009 of the Federal Rules of Bankruptcy Procedure provides
that an appellant "must file with the bankruptcy clerk
and serve on the appellee a designation of the items to be
included in the record on appeal and a statement of the
issues to be presented." Fed.R.Bankr.P. 8009(a)(1). The
designation and statement must be filed within 14 days after
the appellant files her notice of appeal. Id.
Rule 8003 requires an appellant to pay a prescribed fee.
Fed.R.Bankr.P. 8003(a)(3)(C). Rule 8003 also states that
"[a]n appellant's failure to take any step other
than the timely filing of a notice of an appeal does not
affect the validity of the appeal, but is ground only for the
district court... to act as it considers appropriate,
including dismissing the appeal." Fed. R. Bank. P.
8003(a)(2). Therefore, failure to pay the required filing fee
or file the required designation of record can warrant
dismissal. See In re Weiss, 111 F.3d 1159, 1173 (4th
a district court may dismiss an appeal pursuant to Rule
8003(a)(2), "it must take at least one of the following
steps: "(1) make a finding of bad faith or negligence;
(2) give the appellant notice and an opportunity to explain
the delay; (3) consider whether the delay had any possible
prejudicial effect on the other parties; or (4) indicate that
it considered the impact of the sanction and available
alternatives." Id. (citing In re Serra
Builders, Inc., 970 F.2d 1309, 1311
Cir. 1992)). The United States Court of Appeals for the
Fourth Circuit has emphasized that "the sanction of
dismissal for failure to comply with a non-jurisdictional,
procedural guideline . .. [is] a harsh sanction which a
district court must not impose lightly." Serra
Builders, 970 F.2d at 1311. Nonetheless, it is clear
from existing precedent that an appellant's failure to
comply with procedural requirements may lead to dismissal of
an appeal. See id. (affirming the dismissal of an
appeal where the appellant negligently filed the designation
of record fifteen days late).
case, Gallaher filed her notice of appeal on November 15,
2016. On November 30, 2016, the bankruptcy clerk notified
this court that the appellant had not paid the filing fee or
filed a designation of the items to be included in the record
on appeal as required by the Federal Rules of Bankruptcy
Procedure. On December 16, 2016, this court gave the
appellant notice and an additional opportunity to perfect her
appeal. Gallaher affirmatively elected not to respond, and
the time for doing so has expired. After considering the
impact of the sanction and available alternatives, as well as
the prejudicial effect of the delay, the court finds that the
appeal must be dismissed.
reasons stated, this appeal will be dismissed pursuant to
Rule 8003(a)(2) of the Federal Rules of Bankruptcy Procedure.
The Clerk is directed to send certified copies of this
memorandum opinion and the accompanying order to all counsel