In re Parmer
- Summarized by David Treacy , U.S. Bankruptcy Court, Eastern District of Kentucky
- 6 months 1 day ago
- Case Type:
- Consumer
- Case Status:
- Affirmed
- Citation:
- No. 25-1213 (3rd Circuit, Aug 25,2025) Not Published
- Tag(s):
-
- Ruling:
- The U.S. Court of Appeals for the Third Circuit affirmed a district court's dismissal of a bankruptcy appeal for failure to comply with Federal Rule of Bankruptcy Procedure 8009 because the appellant refused to file transcripts of oral arguments before the bankruptcy court. The district court correctly applied the factors a court must weigh in the Third Circuit to determine whether dismissal is apt and did not abuse its discretion in concluding no sanction other than dismissal of the appeal would be appropriate.
- Procedural context:
- The pro se appellant was the only party that appeared in the Third Circuit appeal. His brief did not address whether the district court abused its discretion in applying the factors used in the circuit to evaluate whether to use dismissal as a sanction. Instead, the appellant filed a brief that "focuse[d] on alleged errors committed by the [b]ankruptcy [c]ourt, but those issues [were] not before" the Third Circuit. Thus, while the appellant "has likely forfeited appellate review of the District Court’s determination[,]" the Third Circuit reviewed the district court's dismissal ruling on the merits "in an abundance of caution."
- Facts:
- Debtor Jason Parmer filed a chapter 13 bankruptcy petition in the U.S. Bankruptcy Court for the District of New Jersey. Appellant Steven D’Agostino was a creditor in the case. Acting pro se, Appellant moved to dismiss Debtor's bankruptcy petition as having been filed in bad faith and objected to the confirmation of Debtor's chapter 13 plan. The bankruptcy court held a hearing, denied the motion to dismiss, and confirmed Debtor's plan. Appellant moved for reconsideration and the bankruptcy court denied that motion as well. Appellant appealed to the U.S. District Court for the District of New Jersey from the order denying the motion to dismiss and confirming the plan and from the order denying the motion for reconsideration. Notwithstanding Federal Rule of Bankruptcy Procedure 8009, which requires an appellant to provide transcripts of pertinent hearings as part of the record on appeal, Appellant "declined to provide transcripts of the [b]ankruptcy [c]ourt oral arguments, asserting that the transcripts were not necessary for the [d]istrict [c]ourt to review the orders." The district court disagreed and instructed Appellant to either provide the transcripts or show cause why the appeal should not be dismissed for failure to do so. Appellant then "moved to have the transcripts provided at the Government’s expense because he was proceeding In Forma Pauperis." The bankruptcy court, pursuant to 28 U.S.C. § 753(f), determined the appeal was frivolous and did not present a substantial question so as to require the government to provide the transcripts. Appellant continued to refuse to file the transcripts with the district court. Having given Appellant notice and an opportunity to respond, the district court dismissed the appeal sua sponte upon applying the factors used to assess whether to use dismissal as a sanction set forth in Poulis v. State Farm Fire and Casualty Co.747 F.2d 863, 868 (3d Cir. 1984) (“(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party . . . was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim.”). Appellant took an appeal from the district court's dismissal order to the Third Circuit, which reviewed that order for an abuse of discretion.
- Judge(s):
- SHWARTZ, MONTGOMERY-REEVES, and SCIRICA
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