Mehta v. Havis, et al

United States Court of Appeals
Fifth Circuit
F I L E D
November 3, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-20130
Summary Calendar
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IN THE MATTER OF:
BAQAR SHAH,
Debtor.
MAHENDRA R. MEHTA,
Appellant,
VERSUS
KENNETH R. HAVIS,
CHAPTER 7 TRUSTEE,
Appellee
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:05-CR-3205
______________________________

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Before SMITH, WIENER, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Mahendra Mehta appeals the district
court’s dismissal of his appeal from the bank-
ruptcy court for failing to file a timely appel-
late brief. We affirm.
I.
Mehta is a creditor of Baqar Shah. After
Shah had filed for bankruptcy, the trustee,
Kenneth Havis, moved for approval of a com-
promise between the trustee and numerous in-
dividuals who were allegedly recipients of
fraudulent transfers. Those individuals had
purchased real property from Shah before he
filed for bankruptcy. Mehta filed objections to
the motion, but the bankruptcy court approved
the compromise.
Mehta appealed, and the appeal was dock-
eted with the district court. Though he filed
his statement of issues and record designa-
tions, Mehta did not file an appellate brief
within the time specified in Federal Rule of
Bankruptcy Procedure 8009(a)(1). After the
appeal had been filed in the district court, the
trustee moved to strike some of Mehta’s des-
ignations, and that court granted the motion.
The court denied Mehta’s motion to vacate its
order striking his designations and dismissed
the appeal for failure to prosecute by failing to
file an appellate brief.
Mehta appeals the dismissal. In his reply
brief filed in this court, he claims that the
bankruptcy court did not have jurisdiction to
consider the compromise between the trustee
and the settling property owners.
We affirm the dismissal for failure to file a
brief in the district court, and we conclude we
lack appellate jurisdiction to consider whether
the bankruptcy court had jurisdiction over the
compromise. Because the appeal was properly
dismissed, we do not reach the propriety of the
district court’s grant of the trustee’s motion to
strike.
II.
We first confront the charge that the bank-
ruptcy court lacked jurisdiction to approve the
compromise that underlies this appeal. We
have no jurisdiction here to opine on whether
the bankruptcy court had jurisdiction because,
as we conclude in part III, infra, no proper
appeal was pursued in the district court. In
other words, despite our obligation in the usu-
al case to inquire sua sponte into a lower
court’s jurisdiction, see Mitchell v. Maurer,
293 U.S. 237, 244 (1934), we lack the power
to do so if the actions of that court are not
properly appealed so as to bring the matter to
us in a procedurally valid manner.
III.
We review the district court’s dismissal of
Mehta’s appeal for abuse of discretion “with
attention to the prejudicial effect of delay on
the appellees and the bona fides of the appel-
lant.” Zer-Ilan v. Frankford (In re CPDC
Inc.), 221 F.3d 693, 698 (5th Cir. 2000).
“Dismissal is a harsh and drastic sanction that
is not appropriate in all cases,” but Federal
Rule of Bankruptcy Procedure 8001(a) pro-
vides district courts the discretion to dismiss
an appeal. Id. at 699. The district court did
not commit any legal error in its ruling, and its
order shows no indication that it failed to
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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weigh the severity of the sanction against the
extent of Mehta’s violation of rule 8009. The
court had discretion to dismiss the appeal, and
it did not abuse that discretion.
The judgment of the district court, dismiss-
ing the appeal from the bankruptcy court, is
AFFIRMED.1
1 We deny the trustee’s request for an award of
fees pursuant to Federal Rule of Appellate Proce-
dure 38.

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