Olick et al v. Sebastianelli et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THOMAS W. CLICK
CIVIL ACTION
v.
NO. 06-5160
CHESTER SEBASTIANELLI, et al.
Memorandum and Order
YOHN,J.
The instant action involves an appeal, filed by debtor/appellant Thomas W. Olick, from
the bankruptcy court's October 10,2006 order dismissing Click's complaint for lack of
jurisdiction. Olick has also moved to have his appeal dismissed without prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(2). Appellees agree that this court should dismiss the
appeal; however, they contend that it should be dismissed with prejudice as Olick has failed to
comply with Federal Rules of Bankruptcy Procedure 8002, 8006, and 9006. For the reasons that
follow, I will dismiss the appeal with prejudice.
I. Background
On July 11,1996, Olick and his wife, Kathryn Olick, filed for Chapter 13 bankruptcy.
An amended Chapter 13 plan was confirmed by an order entered on January 25,1999. On
September 26,2006, the bankruptcy court granted the Clicks a discharge.1 On May 27,2005,
'From the commencement of his bankruptcy case to his discharge, Olick filed two notices
of appeal with this court-both appeals challenged the bankruptcy court's order dated July 28,
1999. The first appeal (Case No. 99-4477) was dismissed for failure to comply with Federal
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Click initiated an adversary proceeding by filing a complaint against the named appellees in the
instant action. On October 10,2006, the bankruptcy court dismissed the complaint against all
defendants after concluding that it lacked jurisdiction over the adversary proceeding. The
bankruptcy court found that there was no nexus between the adversary proceeding and the
debtors' confirmed and completed Chapter 13 plan. The order was entered on October 12,2006.
On October 23,2006, Olick filed a notice of appeal from the bankruptcy court's October
10,2006 order. He filed his Rule 8006 statement on December 7,2006. On January 11,2007,1
issued an order directing the parties to submit briefs addressing three issues: (1) whether Click's
notice of appeal filed on October 23,2006 was timely; (2) whether Click's Rule 8006 statement
was filed and served in a timely manner and, if not, whether the appeal should be dismissed for
failure to do so; and (3) whether Olick's failure to comply with bankruptcy court's orders to pay
the filing fee "forthwith" requires dismissal of appeal. (Order, Jan. 11, 2007.)
On February 9,2007, Olick filed a notice of filing another bankruptcy petition (Docket
No. 11). His brief in response to this court's January 11,2007 order was filed on February 15,
2007. Notably, Olick's brief only addressed one of the three issues the January 11,2007 order
required to be briefed-whether the notice of appeal was timely filed.2 Thereafter, on February
Rule of Bankruptcy Procedure 8006. See In re Olick, 1999 U.S. Dist. LEXIS 19297, at **2-4
(E.D. Pa. Dec. 16,1999). Click's second appeal (Case No. 99-5125) was dismissed for failure to
file a timely notice of appeal under Federal Rule of Bankruptcy Procedure 8002. See In re Olick,
2000 U.S. Dist. LEXIS 312, at **2-4 (E.D. Pa. Jan. 13,2000). The instant action is the third
appeal filed with this court.
2Olick failed to serve this brief on counsel for appellees Richard O'Hay, Chester
Sebastianelli, and Margaret Sebastianelli. (See Appellees* Br. in Resp. to Jan. 11,2007 Order,
Docket No. 15, at 1-2.) Counsel for the aforementioned appellees received a copy of Olick's
brief from counsel representing other appellees.
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26,2007, Olick filed a motion to dismiss his own appeal without prejudice pursuant to Rule
41(a)(2). Olick asserts that the instant case is a contingent asset to the bankruptcy estate related
to his new bankruptcy petition filed on February 9,2007. (See Appellant's Mot. to Dismiss Iff 1-
7.) Further, he contends that voluntary dismissal should be allowed because it is early in the
litigation, none of the parties will be prejudiced, and appellees have not yet expended any
resources. (Id. tlf 8-10.)
Appellees assert that Click's motion to dismiss his appeal without prejudice is nothing
more than an attempt to avoid dismissal on procedural grounds, and contend that the appeal
should be dismissed with prejudice because the notice of appeal was untimely filed in violation
of Rule 8002. (Appellees' Br. in Resp. to Mot. to Dismiss, Docket No. 19, at 1-3.) Further,
appellees claim that dismissal is appropriate because Olick failed to submit a Rule 8006
statement within the ten-day filing deadline.3 (Id. at 2-3). In the alternative, if Olick's motion to
dismiss without prejudice is granted, appellees request $6,401.68 for the attorney fees and costs
expended in the instant action. (Id, at 4.)
II. Discussion
Pursuant to Rule 8002, a notice of appeal must "be filed with the clerk within 10 days of
the entry of the judgment, order, or decree appealed from." Fed. R. Bankr. R 8002(a).4
3Appellees also contend that Olick's untimely Rule 8006 statement "is nothing more than
a rambling discussion of baseless claims, and fails to state specific legal issues that could be
considered on appeal." (Appellees' Br. in Resp. to Mot. to Dismiss, Docket No. 19, at 3.)
4The Third Circuit's holding that "failure to file timely notice within the meaning of
Bankruptcy Rule 8002 is indeed a jurisdictional defect barring appellate review," In re Universal
Minerals, Inc., 755 F.2d 309,310 (3d Cir. 1985), was called into question byEberhart v. United
States, 546 U.S. 12 (2005), and Kontrick v. Ryan, 540 U.S. 443 (2004). See In re Fryer, 2007
U.S. App. LEXIS 13679, at *5 (3d Cir. June 11,2007) (not precedential). Thus, "Rule 8002
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Appellees argue that Click's appeal must be dismissed with prejudice for lack of jurisdiction
because his notice of appeal-filed on October 23,2006-was not filed within ten days of the entry
of the bankruptcy court's October 10,2006 order, which was entered on October 12,2006. I
disagree. Rule 9006(a) governs the computation of the ten-day filing deadline. Fed. R. Bankr. P.
9006(a). That rule provides in pertinent part:
(a) Computation, hi computing any period of time prescribed or
allowed by these rules ..., the day of the act, event, or default from
which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included,
unless it is a Saturday, a Sunday, or a legal holiday . . ., in which
event the period runs until the end of the next day which is not one of
the aforementioned days.
Fed. R. Bankr. P. 9006(a). The bankruptcy order at issue was entered on Thursday, October 12,
2006. The tenth day from that date, October 22,2006, fell on a Sunday. Therefore, pursuant to
Rule 9006(a), the deadline to file a timely notice of appeal was Monday, October 23,2006,
which is the day Olick filed his notice of appeal. Therefore, I find that the notice of appeal was
timely filed.
Rule 8006 requires that an appellant submit "a designation of the items to be included in
the record on appeal and a statement of the issues to be presented" within ten days of filing the
notice of appeal. Fed. R. Bankr. P. 8006. Rule 8006 is a procedural rule and not a jurisdictional
requirement. Because dismissing an appeal is a harsh sanction, "[n]ot every failure to follow
might now qualify as a non-jurisdictional 'claim-processing rule' that is mandatory when
invoked by a party, but subject to waiver if no timeliness objection is raised." In re Fryer, 2007
U.S. App. LEXIS 13679, at **5-6 (not precedential) (citing Eberhart, 546 U.S. at 19). As will
be discussed, Olick timely filed his notice of appeal; therefore, this is irrelevant in the instant
action.
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procedural rules mandates dismissal of the appeal." In re Comer, 716 F.2d 168,177 (3d Cir.
1983) (citing Spartacus, Inc. v. Borough ofMcKees Rocks, 694 F.2d 947, 949 n.6 (3d Cir.
1982)). However, dismissal is appropriate when the failure to comply with Rule 8006 is coupled
with bad faith on the part of the appellant or prejudice to the appellees. See In re Comer, 716
F.2d at 177; see also Kroope v. Kroope, 1997 U.S. Dist LEXIS 211, at *6 (E.D. Pa. Jan. 13,
1997); Pennsummit Tubular, LLCv. Schwab, 2006 U.S. Dist. LEXIS 46435, at *2 (M.D. Pa. July
10,2006). Here, because I find bad faith on the part of Olick, I conclude that dismissal for
failure to comply with Rule 8006 is appropriate.
It is clear that Click's Rule 8006 statement was untimely filed and that the untimeliness
was not minor. His 8006 statement was not filed until December 7,2006, more than forty days
after the notice of appeal was filed.5 Click's untimeliness is even more egregious in light of his
history before this court. He already has had two appeals dismissed by this court for failure to
comply with the procedural requirements of Rule 8006. See In re Olick, 2000 U.S. Dist. LEXIS
312, at *8 n.4 (E.D. Pa. Jan. 13,2000) (finding that Olick, given his history of filing bankruptcy
appeals, should have been aware of Rule 8006's requirements). Thus, he had clear knowledge of
Rule 8006's procedural requirements. Further, Click's Rule 8006 statement, even if it had been
timely submitted, is deficient as it fails to designate the items to be included in the record; thus,
the court cannot meaningfully review his appeal as it still has not received the necessary
transcripts and documents from the bankruptcy court. Notably, although appellees highlighted
this deficiency along with others in their brief submitted on March 2,2007 (Docket No. 15),
5Olick failed to brief the issue of his Rule 8006 statement's untimeliness as directed by
this court's January 19,2007 order, hi addition, he has not proffered any explanation for his
untimeliness.
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Click has still not made any attempt to supplement or correct his Rule 8006 statement. Rather,
he has filed another bankruptcy petition with the bankruptcy court and requested dismissal of his
appeal pursuant to Rule 41(a)(2).6 Thus, appellant never "servefd] on the appelleefs] a
designation of the items to be included in the record on appeal" as required by Rule 8006. See
Fed. R. Bankr. P. 8006. Thus, in light of his willful disregard of Rule 8006's requirements, I find
bad faith on the part of Olick and conclude that dismissal is warranted. Accordingly, I will
dismiss the instant appeal with prejudice.7
An appropriate order follows.
federal Rule of Civil Procedure 41 (a) provides in pertinent part:
[A]n action shall not be dismissed at the plaintiff s instance save
upon order of the court and upon such terms and conditions as the
court deems proper. If a counterclaim has been pleaded by a
defendant prior to the service upon the defendant of the plaintiffs
motion to dismiss, the action shall not be dismissed against the
defendant's objection unless the counterclaim can remain pending for
independent adjudication by the court. Unless otherwise specified in
the order, a dismissal under this paragraph is without prejudice.
Fed. R. Civ. P. 41(a)(2).
'Because the appeal is dismissed for failure to comply with Rule 8006, Click's motion to
dismiss his appeal pursuant to Rule 41(a)(2) is moot.
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THOMAS W. OLICK
v.
CHESTER SEBASTIANELLI, et al.
CIVIL ACTION
NO. 06-5160
Order
AND NOW on this JO day of July 2007, upon careful consideration of the submitted
briefs in response to this court's January 19,2007 order, IT IS HEREBY ORDERED THAT:
1. Appellees' motion to dismiss is GRANTED and the above-captioned appeal from
the bankruptcy court's order dismissing debtor/appellant Thomas W. Olick's
adversary proceeding for lack of jurisdiction is DISMISSED WITH PREJUDICE
for failure to comply with Federal Rule of Bankruptcy Procedure 8006.
2. Appellant Thomas W. Olick's motion to dismiss the above-captioned appeal
pursuant to Federal Rule of Civil Procedure 41(a)(2) (Docket No. 14) is
DISMISSED as moot.
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