Filed: Jun. 20, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 20, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-41631 Summary Calendar IN RE: JUAN PEQUEÑO, Debtor. _ JUAN PEQUEÑO, Appellant, v. MICHAEL B. SCHMIDT, Appellee. _ IN RE: JUAN PEQUEÑO, Debtor. _ JUAN PEQUEÑO, Appellant, v. CITY OF BROWNSVILLE, ET AL.; LAW OFFICE OF FRANK COSTILLA; LAW OFFICE OF MICHAEL SCHMIDT, Appellees. _ Appeal from the United States District Court for the Sou
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 20, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-41631 Summary Calendar IN RE: JUAN PEQUEÑO, Debtor. _ JUAN PEQUEÑO, Appellant, v. MICHAEL B. SCHMIDT, Appellee. _ IN RE: JUAN PEQUEÑO, Debtor. _ JUAN PEQUEÑO, Appellant, v. CITY OF BROWNSVILLE, ET AL.; LAW OFFICE OF FRANK COSTILLA; LAW OFFICE OF MICHAEL SCHMIDT, Appellees. _ Appeal from the United States District Court for the Sout..
More
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 20, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-41631
Summary Calendar
IN RE: JUAN PEQUEÑO,
Debtor.
____________________________________________________
JUAN PEQUEÑO,
Appellant,
v.
MICHAEL B. SCHMIDT,
Appellee.
____________________________________________________
IN RE: JUAN PEQUEÑO,
Debtor.
____________________________________________________
JUAN PEQUEÑO,
Appellant,
v.
CITY OF BROWNSVILLE, ET AL.; LAW OFFICE OF FRANK COSTILLA; LAW
OFFICE OF MICHAEL SCHMIDT,
Appellees.
_______________
Appeal from the United States District Court
for the Southern District of Texas
No. 1-05-CV-00270
________________
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Juan Pequeño appeals a district court order denying reconsideration of orders
dismissing ten bankruptcy appeals for failure to file briefs as required by FED. R. BANKR. P.
8009.1 Because the district court did not abuse its discretion in denying reconsideration, we
affirm.
During the course of Pequeño’s Chapter 7 bankruptcy case,2 the bankruptcy court
entered several orders that Pequeño, proceeding pro se, individually appealed to the district
court. Pequeño, however, failed to file briefs in those appeals as required by the bankruptcy
rules, and the district court sua sponte dismissed each of Pequeño’s appeals for want of
prosecution. At the time the appeals were dismissed, the briefs were overdue by two to nine
months, and the notices of appeal were insufficient to satisfy the briefing requirement.
Pequeño filed separate motions for reconsideration of the dismissal orders pursuant
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
FED. R. BANKR. P. 8009(a) (requiring a bankruptcy appellant to file a brief within 15 days
of the docketing of an appeal unless a different time limit is established by order or by local rule).
2
11 U.S.C. §§ 701-784.
2
to FED. R. CIV. P. 59(e),3 asserting generally that he failed to file briefs because he was
unaware that there was an active briefing deadline. Pequeño averred that he assumed the
briefing deadline was abated because (1) there were pending motions to dismiss some of the
cases at the time briefs were due, (2) status hearings had previously been held in some prior
appeals before briefs were due, (3) a then-pending Fifth Circuit appeal might have mooted
issues in some of the cases, and (4) this Court allegedly granted a motion to dismiss in a
related civil case before appellate briefs were filed.4 The district court consolidated the
appeals and denied the motions for reconsideration in a single order. At the time the district
court denied the motions, which was thirty days after the appeals were initially dismissed,
Pequeño still had not filed any of the outstanding appellate briefs. Pequeño finally filed a
consolidated brief ten days after the motions for reconsideration were denied.
Pequeño now appeals the order denying his Rule 59(e) motion. The denial of a Rule
59(e) motion for reconsideration is reviewed for abuse of discretion.5 “‘Under this standard
[of review], the district court’s decision and decision-making process need only be
reasonable.’”6 The granting of a Rule 59(e) motion “is an extraordinary remedy and should
3
FED. R. CIV. P. 59(e) (“Any motion to alter or amend a judgment shall be filed no later than
10 days after entry of the judgment.”).
4
Schmidt v. City of Brownsville, No. 05-41624 (5th Cir. August 31, 2006).
5
See Templet v. HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004); Ford Motor Credit Co.
v. Bright,
34 F.3d 322, 324 (5th Cir. 1994).
6
Ford Motor, 34 F.3d at 324.
3
be used sparingly.”7 This is because a motion pursuant to Rule 59(e) “serve[s] the narrow
purpose of allowing a party ‘to correct manifest errors of law or fact or to present newly
discovered evidence.’”8
Federal Bankruptcy Rule 8009 requires bankruptcy appellants to file a brief within
15 days of docketing,9 and the district court may dismiss an appeal for failure to comply with
this rule.10 Pro se litigants are charged with knowing and following the law and the rules of
procedure,11 and in this case, the district court determined that Pequeño had demonstrated
knowledge of the brief-filing requirement based on his conduct in sixteen prior bankruptcy
appeals in the two years preceding dismissal of the subject appeals. In fact, Pequeño had
filed motions for extensions of time to file briefs in four other cases and subsequently timely
filed briefs in those cases.
On appeal, Pequeño does not contend that he was unaware of the brief-filing deadline.
Rather, he claims that he reasonably believed that he was not required to file briefs based on
the procedural posture of the appeals at the time of dismissal. He asserts that his prior
7
Templet, 367 F.3d at 479.
8
Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989).
9
FED. R. BANKR. P. 8009(a).
10
Id. 8001(a) (authorizing dismissal of a bankruptcy appeal for failure to comply with the
bankruptcy rules); see In re Braniff Airways, Inc.,
774 F.2d 1303, 1305, 1305 n.6 (5th Cir. 1985)
(observing that a bankruptcy appeal may be dismissed for failure to file an initial brief); Pyramid
Mobile Homes, Inc. v. Speake,
531 F.2d 743, 745-46 (5th Cir. 1976) (same).
11
See Teemac v. Henderson, 298 F.3d 452, 457 & n.11 (5th Cir. 2002).
4
bankruptcy cases did not prepare him to handle these particular appeals, which he perceived
to be more complex, and argues that he should be excused from failing to comply with the
briefing deadlines because he did not understand how the procedural rules applied to these
particular appeals.
However, Pequeño does not assert that the district court actually abated the filing
deadline or stated an intent to do so. Nor does he argue that he requested or was granted a
stay or abatement order from this Court while his related appeal was pending. He also has
not argued or submitted evidence that he requested a status conference. Pequeño’s alleged
misperception about his filing requirements was both unwarranted and unsubstantiated.
Furthermore, even after dismissal, Pequeño failed to achieve compliance with the rules either
before seeking reconsideration of the dismissal orders or at any time during the considerable
period of time between dismissal and denial of his motion to reconsider. Under these
circumstances, the district court did not abuse its discretion in denying Pequeño’s Rule 59(e)
motions.
Pequeño also argues for the first time on appeal that the original dismissal orders were
issued without notice and an opportunity to cure. Other than citing FED. R. CIV. P. 41, which
is silent regarding notice prior to a sua sponte involuntary dismissal,12 Pequeño provides no
authority to support his argument that he was entitled to pre-dismissal notice.13 Pequeño’s
12
FED. R. CIV. P. 41 (governing both voluntary and involuntary dismissal of actions).
13
But cf. Link v. Wabash R.R. Co., 370 U.S. 626, 632 (1962) (holding the absence of notice
or of an adversary hearing does not necessarily render a dismissal for failure to prosecute void);
Powell v. United States,
849 F.2d 1576, 1580 (5th Cir. 1988) (the harmless error rule applies when
5
notice argument is therefore waived.14
AFFIRMED.
the district court fails to give ten-days notice before granting summary judgment and failure to give
notice is harmless when the non-moving party either admits that it had no additional evidence to
present or had an opportunity to present additional evidence and that evidence does not raise a
genuine issue of material fact).
14
See FED. R. APP. P. 28(a)(9) (requiring appellant’s brief to include “the argument, which
must contain . . . appellant’s contentions and the reasons for them, with citations to the authorities
and parts of the record on which the appellant relies”); L&A Contracting Co. v. S. Concrete Servs.
Inc., 17 F.3d 106, 113 (5th Cir. 1994) (holding an argument waived for failure to cite authority);
LeMaire v. La. Dep’t of Transp. & Dev.,
480 F.3d 383 (5th Cir. 2007) (arguments not raised before
the district court are waived and cannot be raised for the first time on appeal). Cf. Link v. Wabash
R.R. Co.,
370 U.S. 626, 633 (1962) (“When circumstances make such action appropriate, a District
Court may dismiss a complaint for failure to prosecute even without affording notice of its intention
to do so or providing an adversary hearing before acting.”); Powell v. United States,
849 F.2d 1576,
1580 (5th Cir. 1988) (the harmless error rule applies when the district court fails to give ten-days
notice before granting summary judgment and failure to give notice is harmless when the non-moving
party either admits that it had no additional evidence to present or had an opportunity to present
additional evidence and that evidence does not raise a genuine issue of material fact).
6
