Dismissing a bankruptcy appeal for missing the initial brief-filing deadline is an abuse of discretion and reversible error in the Eleventh Circuit, where dismissal requires “‘consistently dilatory conduct or the complete failure to take steps other than the mere filing of a notice of appeal.’”
Pro se, a woman filed a notice of appeal from an order modifying the automatic stay to permit foreclosure of her home. She also filed a timely designation of the record and statement of issues on appeal.
The court notified the woman that her brief was due on Dec. 7, 2015. Three weeks before the deadline, she filed a motion for a stay pending appeal and an enlargement of time to submit a brief. The district court denied the motion and said it “expects counsel to comply with all deadlines.”
On Dec. 7, the day her brief was due, the woman filed another motion for an extension of time to submit a brief. Several days later, the district court denied the motion and dismissed the appeal.
On appeal, the Eleventh Circuit reversed the district court in a per curiam opinion on Dec. 12.
Citing the circuit’s own authority, the panel said that “‘dismissal is proper only when bad faith, negligence or indifference has been shown.’” A “slight lack of diligence on the part of the appellant may not be sufficient to warrant dismissal,” the opinion says.
The appeals court inferred that the district court applied the “stringent rule of dismissal” that the Eleventh Circuit had previously rejected.
The opinion does not say that the circuit court was being lenient with deadlines because the appellant was pro se. Laying down a rule for seemingly general application, the opinion says that the failure “to file a single brief on time is insufficient to support a dismissal.”