Bernstein v. Revard

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-CV-61397-SINGHAL/STRAUSS
ELIOT I. BERNSTEIN,
Appellant,
v.
CHARLES REVARD,
Appellee.
/
REPORT AND RECOMMENDATION
THIS MATTER came before the Court upon Appellee’s Motion to Dismiss Appeal and
Incorporated Memorandum of Law [DE 26] (the “Motion”), which has been referred to me to take
all necessary and proper action as required by law [DE 29]. 	I have carefully reviewed and
considered the Motion, the Response [DE 27], and all other pertinent portions of the record. For
the reasons discussed below, I respectfully RECOMMEND that the Motion [DE 26] be DENIED.
BACKGROUND
Appellant Eliot Bernstein (“Debtor”) appeals multiple orders entered in the underlying
bankruptcy proceedings. [DE 1] at 1-2. See generally 28 U.S.C. § 158 (providing district courts
with jurisdiction to hear appeals from certain bankruptcy proceedings). 	In an order granting
Debtor’s motion for extension of time, this Court stated that Debtor’s Initial Brief was due no later
than September 18, 2025. [DE 22]. Debtor filed his Initial Brief on September 19, 2025. [DE 24].
The same day, Debtor filed his “Motion to Accept Initial Brief on Appeal.” [DE 23]. That motion
stated that Debtor did not receive the Court’s order extending the deadline to September 18, 2025,
until September 19, 2025. Id. ¶¶ 2-3. Debtor argued that the Court should accept the Initial Brief
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filed one day late because Debtor did not receive the order until after the deadline passed. Id. ¶ 4.
Debtor further argued that “[t]he brief should be accepted without an Addendum under Rule
8018(e) as the Clerk submitted the Original Record to the District Court.” 	Id. ¶ 5. 	The Court
granted the motion to accept the untimely Initial Brief after Appellee Charles Revard (“Judgment
Holder”) did not file a response. [DE 25]. The Court stated that it will accept the Initial Brief and
ordered Judgment Holder to file a responsive brief by November 6, 2025. Id. at 1.
Two days later, Judgment Holder filed the Motion, asking the Court to dismiss the appeal
under Federal Rule of Bankruptcy Procedure 8003(a)(2). [DE 26] at 1. According to the Motion,
Debtor’s Initial Brief does not have an appendix with relevant portions of the record, including a
transcript from a bankruptcy hearing that occurred on June 2, 2025, which Debtor “heavily relies
upon in his Initial Brief.” Id. ¶ 3. Judgment Holder insists that the Court should dismiss the appeal
because Debtor’s failure to include an organized appendix and a transcript of the June 2, 2025
hearing prejudices Judgment Holder’s ability to respond to Debtor’s main arguments on appeal.
Id. ¶¶ 3-4.
Debtor then filed a Response to the Motion. 	[DE 27]. 	In the Response, Debtor argues,
among other things, that the Motion appears to be improper because the Court granted Debtor’s
prior motion, which had stated that “[t]he brief should be accepted without an Addendum . . . .”
Id. ¶¶ 6, 12, 15. Debtor further argues that counsel for Judgment Holder already had the transcript
from the June 2, 2025 hearing because it was attached to Debtor’s motion for reconsideration that
he filed in the bankruptcy court. Id. ¶ 17-18. Debtor attaches the motion for reconsideration to
his Response, which includes what appears to be the transcript from the June 2, 2025 hearing. See
[DE 27] at 19-37. Debtor elsewhere notes that one of Judgment Holder’s attorneys attended the
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June 2, 2025 hearing. Id. ¶ 19. If necessary, Debtor asks for leave to submit an appendix for the
Initial Brief. Id. ¶ 33.
Judgment Holder later filed an Answer Brief. [DE 28]. The Answer Brief states that the
transcript attached to Debtor’s Response is unofficial. See, e.g., id. at 11 n.21. Yet, throughout
the Answer Brief, Judgment Holder cites the transcript of the June 2, 2025 hearing that Debtor
included as an attachment to the Response. See generally id. Judgment Holder does not appear to
substantively challenge the authenticity of the transcript attached to Debtor’s Response. 	Id.
Additionally, Judgment Holder was able to cite relevant portions of the record without an
appendix. See id. at 6 (explaining record citations in light of missing appendix).
ANALYSIS
The Motion should be denied because Debtor has adequately prosecuted his case and taken
sufficient steps beyond filing the notice of appeal. However, even if the Court disagrees, Debtor
should be given an opportunity to correct any procedural deficiencies rather than have his appeal
dismissed, especially considering his pro se status.
Under Federal Rule of Bankruptcy Procedure 8003(a), “[a]n appellant’s failure to take any
step other than timely filing a notice of appeal does not affect the appeal’s validity, but is ground
only for the district court . . . to act as it considers appropriate, including dismissing the appeal.”
Fed. R. Bankr. P. 8003(a)(2). “[D]ismissal typically occurs in cases showing consistently dilatory
conduct or the complete failure to take any steps other than the mere filing of a notice of appeal.”
Lawrence v. Educ. Credit Mgmt. Corp., 522 F. App’x 836, 839 (11th Cir. 2013) (quoting Brake v.
Tavormina (In re Beverly Mfg. Corp.), 778 F.2d 666, 667 (11th Cir. 1985); Fohrmeister v. Puckett,
No. 17-CV-516-T-36, 2017 WL 2958919, at *1 (M.D. Fla. July 11, 2017) (relying on Lawrence
for dismissal standard under Rule 8003(a)). 	At bottom, absent mistakes of law, a district court
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retains “significant discretion” in handling matters under Rule 8003(a)(2). In re Zalloum, No. 20-
11483, 2021 WL 5112272, at *4 (11th Cir. Nov. 3, 2021).
Here, Debtor has not demonstrated the type of conduct that would merit the Court using its
discretion to dismiss the appeal under Rule 8002(a)(2). Although Debtor’s Initial Brief was filed
one day late, this Court granted Debtor’s “Motion to Accept Initial Brief on Appeal.” [DE 25] at
1. Moreover, despite several deadline extensions, it appears that Debtor has attempted to actively
prosecute the appeal, such as by responding to the Motion and filing a Reply Brief. Debtor has
not simply filed the notice of appeal and disappeared. Still, Judgment Holder is correct that Debtor
did not include an appendix (including the at-issue transcript from the June 2, 2025 hearing) with
the Initial Brief. 	While a court could choose to dismiss a bankruptcy appeal where a lack of a
transcript and other relevant portions of the record precludes “intelligent review,” see, e.g., In re
Lozano, No. 23-CV-10081, 2023 WL 4995328, at *7 (D. Mass. May 19, 2023), the situation in
this case is different. Debtor may not have included the at-issue transcript in an appendix but did
include it in an attachment to his Response to the Motion. Judgment Holder then filed an Answer
Brief that cited the same transcript, along with other portions of the record. The record, therefore,
did not totally preclude intelligent review—just the use of more conventional citations.
Additionally, the Initial Brief does not appear to challenge the authenticity of the transcript beyond
labeling the transcript as unofficial, and Judgment Holder’s counsel supposedly attended the
hearing that the transcript resulted from. Therefore, I recommend that the Motion be denied.
However, if the Court disagrees with this conclusion, I still recommend that the Court not
dismiss the appeal. The Court should instead provide Plaintiff with an opportunity to correct any
procedural deficiencies. Debtor’s pro se status, the interests of justice, the reality that the appeal
is fully briefed, and the Court’s prior order granting Debtor’s “Motion to Accept Initial Brief on
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Appeal” all reinforce this conclusion. See Fed. R. Bankr. P. 8028 (“To expedite a decision or for
other cause, a district court . . . may, in a particular case, suspend the requirements of these Part
VIII rules . . . .”); cf. In re Cannie, No. 24-BK-3364, 2025 WL 1755157, at *1 (M.D. Fla. June 25,
2025) (“[C]onsidering Cannie’s pro se status as well as the interests of justice, the Court will
exercise its authority under Rule 8028 . . . to suspend the timing requirement of . . . Rule 8009
(providing procedures for the filing of transcripts) and provide Cannie one final opportunity to
obtain and file the necessary transcript.”).
CONCLUSION
For the foregoing reasons, I respectfully RECOMMEND that the Motion [DE 26] be
DENIED.
The parties will have fourteen (14) days from the date of being served with a copy of this
Report and Recommendation within which to file written objections, if any, with the Honorable
Raag Singhal, United States District Judge. Failure to timely file objections shall bar the parties
from a de novo determination by the District Judge of an issue covered in the Report and shall bar
the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this
Report except upon grounds of plain error if necessary in the interest of justice. 	See 28 U.S.C.
§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th
Cir. 1989); 11th Cir. R. 3-1.
DONE AND SUBMITTED in Fort Lauderdale, Florida, this 11th day of February 2026.
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