MEMORANDUM

RICHARD G. ANDREWS, District Judge.

Appellees have filed a motion to dismiss the appeal, to award costs, and to grant sanctions against Appellant, Romie David Bishop. (D.I. 27). Appellant has filed various motions.

Relevant background to this appeal is that Appellant, who is the debtor in bankruptcy proceedings (Bkr. Case No. 11-12338),1 filed an adversary complaint (Bkr. Case No. 12-50912) against Appellees (or "Fannie Mae") alleging violations of the Truth in Lending Act. The Bankruptcy Court dismissed the adversary complaint for failure to state a claim. Mr. Bishop appealed, and I held, among other things, that the Bankruptcy Court should have allowed Mr. Bishop, who was prose, a chance to amend his complaint. See In re: Bishop, 2014 WL 1266363 (D. Del. March 21, 2014). Thus, I remanded the case to Bankruptcy Court. There Appellant amended his complaint (D.I. 1-1 at 4), and the Bankruptcy Court held a trial. Appellant left in the middle of the trial. (D.I. 1-1 at 6-7). The Bankruptcy Court entered a judgment on the merits (as opposed to by default or as a sanction) against Appellant on all seven counts of the Second Amended Complaint on March 2, 2015. (D.I. 1-7; see D.I. 1-1 at 8-13). On March 16, 2015, Appellant timely appealed to this Court. (D.I. 1).

In this Court, Appellant has refused to litigate the merits of the appeal. On August 3, I.ordered Appellant to file an Opening Brief no later than August 31. (D.I. 19 at 2). Appellant moved for a stay on August 28, which I denied on August 31. (D.I. 22 & 23). Appellant requested reconsideration, which I denied. (D.I. 24 & 25). In the request for reconsideration, Appellant stated he would not file a brief in this Court, and that he "only wished to preserve the entire record for his appeal to the Third Circuit Court of Appeals." (D.I. 24 at 2, ¶ 4). On September 9, I nevertheless extended Appellant's time to file a brief in this Court until September 18, 2015. (D.I. 25 at 2). I warned him that failure to file a brief would constitute failure to prosecute, and be grounds for dismissal of his appeal. On September 18, he filed a pleading indicating he wanted to preserve his right to appeal. The same day, Appellees filed the above-referenced motion to dismiss, to award costs, and to grant sanctions. On October 5, Appellant filed various papers, including some motions. On October 20, Appellant filed a pleading that in part appeared to complain that I had not promptly dismissed the appeal on September 18. (See D.I. 35 at 4, ¶ 9 ("Appellant will not argue any fact before [the district judge], they are on the record that they object to his appointment to 8 consecutive actions."); id. at 2-3, ¶¶ 3-5).

On Appellant's motion to change venue (D.I. 29), it is DENIED for the same reasons as in the previous appeal. See In re: Bishop, 2014 WL 1266363, *3.

On Appellant's motion claiming harmless error (D.I. 32), I GRANT the motion, and therefore consider the motion to be heard on the original record (D.I. 28). On Appellant's motion to be heard on the original record (D.I. 28), Appellant cites to Third Circuit L.A.R. 30.2, wIV-ch provides that the appellate court, "upon motion, may dispense with the requirement of an appendix and permit an appeal or petition to be heard on the original record." I think this motion is moot, in view of Appellant's refusal to participate in the appeal. Thus, I will DISMISS the motion as moot. If the motion were not moot, I would grant it, as I have easy electronic access to everything in the record at the Bankruptcy Court.

Appellant, having made it perfectly clear that he is not going to file a brief in compliance with multiple orders of this Court, has failed to prosecute this appeal. The appeal will therefore be DISMISSED for failure to prosecute.2

That leaves Fannie Maae's motions for costs and sanctions. Appellant makes no persuasive argument against the imposition of costs and sanctions. (D.I. 35). He has been repeatedly warned that his conduct is sanctionable. "Appellants are advised that future frivolous pleadings may result in financial sanctions and filing limitations." (D.I. 1-1 at 15 & n.31, quoting the Court of Appeals for the Third Circuit in an earlier appeal in this case). Thereafter, the Bankruptcy Court noted, "The conduct displayed by Mr. Bishop is unacceptable, and he has been warned numerous times during this litigation. The Court will not hesitate to issue sanctions in the future should Mr. Bishop's conduct continue." (D.I. 1-1 at 15). In my opinion, filing an appeal and then refusing to participate in the briefing on the merits is vexatious conduct and makes the appeal frivolous.

Appellees are entitled to an award of costs. See Fed. R. App. P. 39(a). The Court will enter a separate order directing that Appellees file a bill of costs within fourteen days.3

Further, Appellees ask for a "compensatory sanction." (D.I. 27-2 at 2, if 3.a). It is not clear exactly what they are seeking. Since I have not reached the merits of the underlying litigation, and the Court that did, the Bankruptcy Court, declined to impose sanctions, I would only consider imposing sanctions for the frivolous appeal. Appellees filed a motion (D.I. ¶ 27) for sanctions. See Fed. R. App. P. 38 (captioned "Frivolous Appeal-Damages and Costs"). Appellees seek to restrict Mr. Bishop's access to the courts, including prohibiting him from filing an appeal from this case. (D.I. 27 at 23 (seeking "a prohibition of appealing further the bankruptcy court's judgment to the Third Circuit")). Appellees go too far, I think, to suggest that I enter an order prohibiting Mr. Bishop from appealing my decisions. While I think there is plenty of record evidence showing that Mr. Bishop is a vexatious litigant (likely motivated by the fact that he has "occupied the [property in question] and ha[s] not made any mortgage payments in over six years," (D.I. 1-1 at 3)), I think that before restricting his access to the courts, modest monetary sanctions ought to be attempted. I do not think, however, that I can impose them. While I do not see Appellees citing to a rule in connection with their request for sanctions, I think the applicable rule is Fed. R. App. P. 38, which requires a "separately filed motion or notice from the court and reasonable opportunity to respond." Appellant has had a reasonable opportunity to respond, but Appellees' motion was part of its motion to dismiss the appeal. Thus, in my opinion, it was not in a "separately filed motion." See Higgins v. Vortex Fishing Sys., 379 F.3d 701, 709 (9th Cir. 2004); In re Del Mission, 98 F.3d 1147, 1154 (9th Cir. 1996); McDonough v. Royal Caribbean Cruises, 48 F.3d 256, 258 (7th Cir. 1995). These cases consider that a request for attorney's fees and/or sanctions made in an appellate brief do not meet the separately filed motion requirement. I do not think that a motion made as a part of a twenty-two page pleading the bulk of which explains why the appeal should be dismissed (and is thus like an appellate . brief) should count as a separately filed motion. Thus, the multi-part motion (D.I. 27) will be GRANTED IN PART AND DENIED IN PART.