1The order prohibited Baheth from disposing of the property of

M.A. Baheth Construction Co., Inc., the chapter 7 debtor for which

Schott was the trustee. Fidelity was the surety on Schott's

bankruptcy trustee bond. 

1

United States Court of Appeals,

Fifth Circuit.

No. 96-31325

Summary Calendar.

In the Matter of M.A. BAHETH CONSTRUCTION CO., INC., Debtor.

M.A. BAHETH & CO., INC., Appellant,

v.

Martin A. SCHOTT, and Fidelity and Deposit Insurance Company of

Maryland, Appellees.

Aug. 8, 1997.

Appeal from the United States District Court for the Middle

District of Louisiana.

Before JONES, DeMOSS and PARKER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Because appellant has willfully refused to comply with

FED.R.APP.P. 6(b)(2)(ii), applicable in appeals from bankruptcy

court decisions, we dismiss.

PROCEDURAL HISTORY

On July 6, 1995, M.A. Baheth & Company, Inc. ("Baheth"), filed

a complaint in federal district court alleging that Martin A.

Schott, chapter 7 trustee, and Fidelity and Deposit Company of

Maryland ("Fidelity") had wrongfully obtained a temporary

restraining order against Baheth that caused it to lose a

$3,645,424.00 construction contract.1 The case was referred to
2

bankruptcy court. On March 22, 1996, Fidelity filed a motion to

dismiss, or alternatively, for summary judgment, and hearing was

set for April 19, 1996. Baheth's counsel, Steven Young, received

notice of this hearing, but neither Baheth nor Young responded to

the motion or attended the hearing. At the April 19th hearing, the

bankruptcy court granted Fidelity's motion for summary judgment and

dismissed Baheth's case with prejudice, and a copy of the written

order issued on that date was sent to Baheth's counsel.

On April 26, 1996, Young filed a motion on Baheth's behalf to

substitute Linda Ritzie as counsel. On May 3, 1996, Baheth filed

a notice of appeal of the April 19th order, along with a motion to

file an appeal out of time. On May 10, 1996, the bankruptcy court

entered an order denying the motion to appeal out of time without

prejudice. Baheth filed an amended motion to file an appeal out of

time on May 15, 1996, and on May 20, 1996, the court ordered

Baheth's May 3rd notice of appeal stricken from the record and

issued an order, which was entered on May 21, 1996, denying the

amended motion. Baheth appealed the May 21st order in federal

district court, which affirmed the bankruptcy court's order denying

the amended motion to file an out of time appeal. Baheth now

appeals the district court's judgment in this court.

Baheth filed its notice of appeal of the district court

judgment on December 23, 1996. On January 30, 1997, however,

Fidelity filed a motion in this court to dismiss Baheth's appeal

for failure to comply with FED.R.APP.P. 6(b)(2)(ii), which states

in part, "[w]ithin 10 days after filing the notice of appeal, the
3

appellant shall file with the clerk possessed of the record

assembled pursuant to Bankruptcy Rule 8006, and serve on the

appellee, a statement of the issues to be presented on appeal and

a designation of the record to be certified and transmitted to the

clerk of the court of appeals." Baheth never filed a statement of

the issues to be submitted on appeal with this court (other than

filing the actual Appellant's Brief on March 6, 1997), and it has

never designated the record on appeal. The motion to dismiss was

carried with the case; it is unnecessary to address the merits of

the appeal, because dismissal of the appeal is warranted for

Baheth's deliberate failure to comply with Rule 6.

DISCUSSION

It is instructive to look at Bankruptcy Rule 8006 for

guidance in this matter. Rule 6(b)(2)(ii) clearly refers to and

parallels Bankruptcy Rule 8006's requirement that a party appealing

to a district court or bankruptcy appellate panel "file with the

clerk and serve on the appellee a designation of the items to be

included in the record on appeal and a statement of the issues to

be presented." As Bankruptcy Rule 8001(a) makes clear, "[f]ailure

of an appellant to take any step other than the timely filing of a

notice of appeal does not affect the validity of appeal, but is

ground only for such action as the district court or bankruptcy

appellate panel deems appropriate, which may include dismissal of

the appeal " (emphasis added). Other circuits have held that an

appellant's failure to comply with procedural rules such as Rule

8006 warrants dismissal of the appeal pursuant to Rule 8001(a).
4

See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.1994) (affirming

district court's judgment dismissing appellants' appeal for failure

to comply with Bankruptcy Rules 8006 and 8009(a)); Serra Builders,

Inc. v. John Hanson Savings Bank FSB, 970 F.2d 1309, 1311 (4th

Cir.1992) (affirming the district court's sanction of dismissal for

appellant's failure to file its designation of the record pursuant

to Rule 8006 until twenty-five days after filing notice of appeal);

but cf. Fitzsimmons v. Nolden, 920 F.2d 1468, 1472 (9th Cir.1990)

(observing that district court must first consider alternative

sanctions in lieu of dismissal for failure to comply with Rule 8006

unless the case presents egregious circumstances such as bad faith

on the part of the appellant).

Although this court has never addressed the issue, we

conclude that failure to comply with Rule 6(b)(2)(ii) authorizes

this court, in its discretion, to impose sanctions including

dismissal of the appeal. As for whether there are any mitigating

factors, Baheth offers no justification for its failure to comply

with Rule 8006's requirements in a timely manner, other than the

bald and belated assertion that this is not a bankruptcy case, and

therefore, the bankruptcy court lacked jurisdiction. After a

scheduling conference with the attorneys for each party on March 5,

1996, however, the bankruptcy court issued on March 15, 1996 an

Order Following Scheduling Conference that specifically stated:

"This proceeding is a "core' proceeding as described in 28 U.S.C.

§ 157(b)(2)(A). Neither party wishes to contest the status of this

proceeding as a core or noncore proceeding. The Court determines
5

that this is a core proceeding and will enter a final judgment

rather than issue proposed findings of fact and conclusions of law,

pursuant to Bankruptcy Rule 9033" (emphasis added). Baheth does

not contest the bankruptcy court's determination that both parties

had consented to its trying the case.

Baheth nevertheless contends in defense of its not abiding by

FRAP 6(b)(2)(ii) that the bankruptcy court completely lacked

subject matter jurisdiction. There are two problems with this

approach. First, Baheth cannot bootstrap its argument on the

merits into a defense against having to comply with the procedural

rules. Until and unless the determination of bankruptcy court

jurisdiction is overturned, Baheth was bound to comply with the

court's judgment—and the procedural consequences thereof.

Second, Baheth is wrong on the jurisdictional point.

Baheth's suit seeking damages from a trustee and the surety on the

bond for the trustee's actions in obtaining an injunction to

prohibit Baheth from disposing of the assets of the estate

constituted, at the very least, a matter "related to a case under

title 11" within the meaning of 28 U.S.C. § 157(a). See, e.g., In

re Ferrante, 51 F.3d 1473, 1476 (9th Cir.1995) (stating that a suit

that involved trustees' duties under the Bankruptcy Code to

administer estate property and a surety's liability on its bond for

the estate's benefit "involves a core issue"); Robinson v.

Michigan Consol. Gas Co., 918 F.2d 579, 583-84 (6th Cir.1990)

(finding that a suit against a trustee was "related to" a

bankruptcy proceeding because the estate would have to reimburse
 

2Rule 6(b)(2)(ii) serves a specific purpose—the advisory notes

to subdivision (b)(2) state in part: "Paragraph (ii) calls for

redesignation of the appellate record assembled in the bankruptcy

court pursuant to Rule 8006 of the Rules of Bankruptcy Procedure.

After an intermediate appeal, a party may well narrow the focus of

its efforts on the second appeal and a redesignation of the record

may eliminate unnecessary material. The proceedings during the

first appeal are included to cover the possibility that independent

error in the immediate appeal, for example failure to follow

appropriate procedures, may be assigned in the court of appeals."

6

the trustee if the suit were successful). Consequently, it was

appropriate for this case to be referred to the bankruptcy court.

Furthermore, by failing to object to the bankruptcy court's

assumption of core jurisdiction, Baheth impliedly consented to the

court's entry of final judgment. In re Texas General Petroleum

Corp., 52 F.3d 1330, 1337 (5th Cir.1995). Thus, the bankruptcy

court was statutorily authorized to enter judgment in this case,

even if the matter could be characterized as non-core. See id.;

28 U.S.C. § 157(c)(2); 28 U.S.C. § 636(c).

Baheth also argues that it would not be in the interest of

justice to dismiss this appeal for failure to comply with Rule 6,

in part because the clerk of the court, according to Baheth, sent

notice on January 22, 1997 that the record on appeal had been filed

with this court. Although the record on appeal was filed on

January 20, 1997, this does not affect Baheth's underlying burden

to file with the court and serve on appellees a statement of the

issues and designation of the record, nor has the underlying

purpose of Rule 6(b)(2)(ii) been served.2 In light of Baheth's

failure to comply with both the deadline and substantive

requirements of Rule 6(b)(2)(ii), it is proper to dismiss Baheth's
 

3Given the procedural history and posture of this case, we can

conceive of no effective alternative to dismissal, nor does the

appellant advocate that any such alternative exists. 

7

appeal, and this court need not proceed to the merits and determine

whether Baheth's failure to file a timely appeal of the bankruptcy

court order in district court was due to excusable neglect.3

CONCLUSION

For the foregoing reasons, Baheth's appeal is dismissed.