LAWRENCE F. STENGEL, District Judge.
This case is an appeal from the United States Bankruptcy Court for the Eastern District of Pennsylvania. Appellee filed a motion to dismiss the appeal, which I will grant.
Several years ago, the Appellant, Hilda Singletary, filed adversary claims against the Appellee, PNC Bank National Association, in the United States Bankruptcy Court for the Eastern District of Pennsylvania. The Bankruptcy Court dismissed some of Appellant's claims. Appellant commenced this appeal on May 3, 2016, challenging the Bankruptcy Court's dismissal of those claims.
Appellant has been represented by counsel throughout the entirety of this appeal. This appeal was initiated by Quarleen Singletary (Appellant's mother) as next of friend on behalf of Appellant. Quarleen Singletary passed away on May 15, 2016.
Per the Clerk of Court's Notice dated June 2, 2016, Appellant was ordered to file its opening brief no later than July 5, 2016. (Doc. No. 3). The day Appellant's brief was due to be filed, Appellant filed a Motion to Place the Appeal in Suspense. (Doc. No. 4). Appellant's Motion to Place the Appeal in Suspense sought a 90-day extension "pending the appointment of a personal representative for [Appellant]" in light of Quarleen Singletary's death. (
On July 7, 2016, I granted Appellant's Motion to Place the Appeal in Suspense. I ordered counsel for Appellant to "inform the court of the status of designation of a representative for Hilda Singletary on or before
Two weeks after Appellant was required to inform the court of Appellant's status, Appellee filed a Motion to Dismiss the appeal for failure to prosecute. Counsel for Appellant never filed a response to the Motion to Dismiss. Nor did counsel for Appellant file any motion for extension of time to file a response. On November 18, 2016, I held a telephone conference with counsel concerning the Motion to Dismiss.
During the telephone conference, I allowed counsel the opportunity to file supplemental briefing on the pending Motion to Dismiss. On December 9, 2016, Appellee filed a brief in further support of its Motion to Dismiss. Counsel for Appellant never filed a brief.
In the exercise of discretion, district courts may dismiss bankruptcy appeals for failure to prosecute or otherwise follows procedures.
"[N]ot all of the
Appellee urges dismissal of this appeal based on Appellant's failure to prosecute. For the reasons that follow, I agree with Appellee and will dismiss the appeal.
The
My July 7, 2016 Order unambiguously ordered counsel for Appellant to "inform the court of the status of designation of a representative for Hilda Singletary on or before
The above conduct weighs heavily in favor of dismissal under the third and fourth
This conduct also shows willfulness or bad faith. While I am certainly sympathetic to the plight of Appellant, and the unfortunate death of her mother, this does not change the fact that Appellant's counsel has had ample time to seek appointment of another representative for Appellant. Appellant's counsel was aware of his obligation pursuant to my July 7, 2016 Order. Despite his awareness, for whatever reason, Appellant's counsel did not comply with the Order. Knowing of a Court Order, and failing to comply with it, is undoubtedly willful conduct.
The second
The meritoriousness of Appellant's claim is also relevant in determining whether dismissal is proper.
Finally, sanctions other than dismissal seem improper here in that it would be unjust to award fees or impose a monetary fine given the nature of this case. In this case, I have also weighed Appellant's personal responsibility. While it could be argued she has limited personal responsibility, this does not outweigh the other
Counsel for Appellant has not raised the issue of a district court's duty to appoint a representative for an incompetent party. Nonetheless, in the interests of justice and fairness, I will address this issue.
Under Federal Rule of Civil Procedure 17, district courts have an obligation to issue an appropriate order "to protect a minor or incompetent person who is unrepresented in an action." Fed. R. Civ. P. 17(c)(2). However, this obligation is not absolutely triggered in every case. Indeed, "[a] court is not required to conduct a sua sponte determination whether an unrepresented litigant is incompetent unless there is some verifiable evidence of incompetence."
In
Here, there is no evidence—let alone "verifiable" evidence—of Appellant's incompetence. There are no medical records. There are no prior adjudications of incompetence. There are no court orders. Nor are there any statements from any state agencies as to Appellant's mental state. While I am mindful of the potential difficulty in obtaining such information, counsel for Appellant has had many months to do so. Without any verifiable evidence of incompetence, I am not required to consider my obligation to appoint a guardian pursuant to Rule 17(c).
For all the foregoing reasons, Appellee's Motion to Dismiss for lack of prosecution is granted.
An appropriate Order follows.