UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

____________________________________) In Re ) Elli otte P atric k Colem an, ) Debtor . ) ) ELL IOTT E PA TRICK C OLEMAN, ) ) Appellan t, ) ) v. ) Civil Action No. 09-1592 (RMC) ) COUNTRYWIDE HOME LOANS, INC., ) ) Appellee. ) ____________________________________) MEMORAN DUM OP INION Elliott e Patrick Coleman, proce eding pro se , appea ls from an order of the bankruptc y court g ranting summary judgme nt to Country wide Home L oans, I nc. Mr. Coleman filed a notice of appea l with the U.S. District Court on J uly 1, 2009. Mr. C oleman thereaf ter moved f

or re cusal of the under signe d, which the Court denie d, and Mr. Coleman nowintends to appea l to the Supreme Court after

the D.C. Circuit denied his appe al. To date , Mr. Coleman has y et to file a brief or any paper s which speak to t h e merits of the instant matter. Country wide Home L oans, I nc. (“Country wide”) has twice moved to dismiss the case for lack of jurisdiction and for failure to timely file a brief. Upon consideration of the motions and the entire rec ord, the Court will g rant the motion to dismi ss. I. F ACTS

On May 11, 2009, the United States Ba nkruptcy Court f

or the District of Columbi a g rante d summary judgme nt to Country wide in a procee ding below. See C o l eman v. CountrywideHome Loans, Inc. ( In r e C o l eman ), Adv. Pro. No. 07-10022 (B ankr. D.D.C. May 11, 2009) [ Dkt. # 54]. On J une 2, 2009, Mr. Coleman asked for an extension of time to file a notice of appea l. See Id. [Dkt. # 59]. Although his motion for an extension of t i m e was opposed, Mr. Coleman filed a notice of a

ppeal with the U.S. District Court for the Dis trict of C olumbia on J uly 1, 2009. See I

d. [Dkt. # 62]. On J uly 15, 2009, the Ba nkruptcy Court d enied the motion for an extension of time pursuant to Fe dera l Rule of Ba nkruptcy Procedur e 8001. See Id. (Mem. Op. & Orde r) [Dkt. ## 68, 69]. The Ba

nkruptcy Court note d that Mr. Coleman had until May 21, 2009 to f ile a timely notice of appea l pursuant to Fe d. R. Ba nkr. P. 8002(a)

. Pursuant to Fe d. R

. Ba n k r. P. 8002(c) (2), the 1 Ba nkruptcy Court could only enter tain Mr. Colema

n ’ s u ntimely motion upon a showing of excusable neg lect. See Id

. [Dkt. # 68] at 2. The Ba nkruptcy Court deter

mined that Mr. Coleman had failed to meet his burden of showing excusable neg lect and denied his motion for an extension of time. See Id . at 10. On Aug ust 21, 2009, the rec ord on appea l was transmitted to the District Court. See Id. [Dkt. # 77]. After being assig ned to this Court, Mr. Coleman filed motions on Aug ust 28, 2009 and S eptember 9, 2009, seeking rec usal of t he undersigne d. See [Dkt. ## 3, 4, 5]. On S eptember 16, 2009, rec usal was denied and Mr. Coleman was g rante d until September 30, 2009, to file a brief. See [Dkt. # 7]. On October 9, 2009, afte r Mr. Coleman failed to timely file a brief, the Court order ed him to show cause by October 23, 2009, why the Court should not dismiss the case pursuant to Fe d. R. Ba nkr. P. 8002(a) (1), which require s that an appellant serve and file its brief within 15 day s afte r

Effe ctive De cembe r 1, 2009, F ed. R. Ba nkr. P. 8002(a) was a

mended to allow f

or a 1 timely notice of a

ppeal to be f

iled within 14 day s of the date of the e ntry of the judg ment, order , or dec ree to be appe aled f rom. Whil e the 14 da

y deadline doe s not apply

to this case, Mr. Coleman’s filing would not have be en timely under the amendment a s the notice wa s filed more than 14 day s after

entry of judg ment. -2-entry of the appea l. See [Dkt. # 8]. On October 23, 2009, Mr. Coleman moved for an extension of

time to show cause , advising the Court that he had filed a mandamus action in the Circuit Court of Appea ls seeking rec usal of the undersig ned. See [Dkt. # 9]. There afte r, o n Oc t o b er 29, 2009, Country wide moved to dismiss the appea l for lack of jurisdiction. See Mot. to Dismiss [Dkt. # 10]. On De ce m b er 3 0 , 2009, the Court of Appea ls denied Mr. Coleman’s petition for a writ of mandamus. See I

n re Coleman , No. 9-5390 (D .C. Cir. De c. 30, 2009). I n acc ordanc e with Fox v

. Strickland , 837 F.2d 507 (D.C. C ir. 1988), t his Court then advised Mr. Coleman of hi s obligation to respond to Country

wide’s motion to dismiss or fac e the prospec t that the motion may be g rante d

as conc eded. See [Dkt. # 12] . The Court g ave Mr. Coleman until January 19, 2010, to respond to the Court’s order to show cause and t o fi l e a response to the motion to dismiss

. See Id. Mr. Coleman was war

ned that failure to comply with the order could lead to dismiss al of his appea l. See Id. On J anuar y 19, 2010, Mr. Coleman petitioned the Circuit Court of Appea ls to rehe ar h is petition for a writ of m andamus. Mr. C oleman si multaneously filed a motion here seek i n g an extension of time to show cause and to respond to the motion to dismiss until afte r the Circuit rende red its decision. See [Dkt. # 13]. The Circuit denied his petition per curiam on April 8, 2010. See I n re Coleman , No. 9-5390 (D .C. Cir. Apr. 30, 2009).

On April 22, 2010, Mr. Coleman moved, y et ag ain, for an indefinite extension of time to show cause and to respond to t h e m o t i o n to dismiss so he could petition the Supreme Court in mandamus to rec use the undersig ned. See [Dkt. # 14]. The Court enter ed a Minute Orde r on April 23, 2010, g iving Mr. Coleman until May 14, 2010, to show cause and respond to Country wide’s motion to dismiss – with a clea r war ning that no further extensions would be g rante d and that failure

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ile a response could lead to dismissal of the case . See Minute Entry Orde r, Apr. 23, 2010. Mr. Coleman has failed to file any response . I nstead, Mr. Coleman filed a notice that he is seeking a stay of the case by the Circuit pending his petition to the Supreme Court to rec use the undersig ned. See [Dkt. # 17]

. II. LEGAL STANDARD

When revie wing a mot ion to dismiss for lack of jurisdiction under Fede ral Rul e of C i vil Procedur e 12(b)( 1), a court must revie w the complaint liberally , g ranting the plaintif f t h e benef it of all infere nces that can be derive d from the fac ts alleg ed. Barr v. Clint on , 370 F. 3d 1196, 1199 (D.C. Cir. 2004). To deter mine whether it has jurisdiction over the claim, a court may consider

m at er i als outside the pleading s. Settles v. U.S. Parole Comm’n , 429 F.3d 1098, 1107 (D.C. Cir

. 2005). No action of the parti es ca n co n fe r subject matter jurisdiction on a fede ral court beca use subject matter jurisdiction is an Article I I I and a statutory require ment. Akinsey e v. District of Columbia , 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction bear s the burden of demonstrating that such j urisdiction exis ts. Khadr v. United States , 529 F.3d 1112, 1115 (D.C. Cir. 2008). Whil e it is true that a co urt has an “oblig ation to construe pro se filings liberally , . . . .” United States v. Byfield, 391 F.3d 277, 281 (D.C. Cir. 2004), clea r indications of 2 a lac k of jurisdiction will lead to dismis sal.

See also Haine

s v. Kerner , 404 U.S. 519, 520 (1972) (notingthat pro se complaints are 2 held to “less string ent standar ds than forma l pleading s draf ted by lawy ers . . .” ); Jarrell v. Tisch , 656 F. Supp. 237, 239 (D.D .C. 1987) (noting that this less stringent standa rd “doe s not constitute a license for a

plaintiff filing pro se to ignor e the F eder al Rules of Civil P roce dure, . . . ” ). -4-III. DISCUSS ION A. F ederal Rule of Bank ruptcy P roce dure 8002 Fe dera l Rule of Ba

nkruptcy Procedur e 8002 require s a party to file a notice of appea l within ten day s afte r the judgme nt or order to be appea led from is enter ed. Fe d. R. Ba nkr. P. 8002(a)

. A party may move the bankruptc y court for an extension of time to file a notice of appea l befor e the time has expired, or no later than twenty day s afte r expiration of the time upon a showing of ex cusable neg lect. Fe d. R. Ba nkr. P. 8002(c) (2). Many circ uit courts have found that a failure to timely file a notice of appea l is a jurisdictional defe ct barr ing appellate revie w. See, e.g. , Siemon

v. Emigrant Savs. Bank (

In re Siemon) , 421 F.3d 167 (2d Cir. 2005) (noting that untimely filings are a jurisdi ctional m at t er, even for pro se appellants); In re LBL Sports Ctr., Inc. , 684 F.2d 410, 412 (6th Cir. 1982) (re cog nizi ng that time limit in prede cessor rule 8002(a) was jurisdictional); Robinson v. Robinson (

In re Robinson) , 640 F.2d 737, 738 ( 5th Cir. 1981) (same) ; Ramsey v. Ramsey (I

n re Ramsey ) , 612 F.2d 1220, 1222 (9th Cir. 198 0 ) (same); In re Herwit , 970 F.2d 709, 710 (10th Cir. 1992) (same)

. Fur

thermore , the advisory committee' s note to rule 8002(a ) cla rified that the rule is an “adaptation” of rule 4(a) of the Feder al Ru l es o f Ap pellate Procedure

. Fe d. R. Ba nkr. P

. 8002 advisory committee' s note. I t is established that the time limit presc ribed by Fe d. R. App. P. 4(a) is “mandatory and jurisdictional.” Browder v. Dir., Dep't of Corr. of Ill. , 434 U.S. 257, 264 (1978) (interna l quotation marks omitted); see also Bowles v. Russe ll , 551 U.S. 205 (2007).

Howeve r, the Supreme Court has rec ently injected some doubt into whethe r Rule 8002 is jurisdictional in nature. I n a string of ca ses, the Supreme Court has held that fe dera l rules presc ribing mandatory

filing de adlines only

deprive a cour

t of jurisdiction where the dea dline was statutorily

cre ated. I f a de adline lac ks a statutory foundation, but is born of the judiciar y

-5-throug h the fe dera l rules, then the r ule is an inflexible claim-proce ssing r ule, which is oblig atory if invoked, but forf

eited by a fa ilure to bring a timeliness objection. See Kontrick v . Ryan , 540 U.S. 443, 452-56 (2004) ( holding that F ed. R. Ba nkr. P. 4004(a) is a non-jurisdictional claimproce ssing r

ule); Eberhart v. United States , 546 U.S. 12, 15-17 (2005) ( same for Fe d. R. Crim. P

. 33); Bowles , 551 U.S. at 209-13 (holding that failure to abide by Fe d. R. App. P. 4 deprives a court of jur isdiction as the rule e choed the deadlines se t forth in 28 U.S.C. § 2107). I n the wake of these c ases, ne ither the D.C. Circuit nor the Supre me Court has spoken to whe ther F ed. R. Ba nkr. P. 8002 is a jurisdictional bar or a claim-proc essing rule. At least one c ircuit has found that the deadline in Rule 8002 is statutorily established and r eaf

firmed its ea

rlier holding that Fe d. R. Bankr . P. 8002 remains a jurisdictional hurdle. See I

n re Latture , No. 09-6016, 2010 U.S. App. L EXI S 10276 (10th Cir. May 20, 2010). The Third Circ uit rece ntly revisited its ear lier holding in In re Univ ersal Minerals, Inc. , 755 F.2d 309 (3d Cir. 1985), and note d that it was now uncle ar w hether failure to comply

with Rule 8002 is a jurisdictional defe ct or a “non-jurisdictional ‘c laim-proce ssing r ule’ that is mandator

y when invoked by

a par ty , but subject to waiver

if no timeliness objection is raised.” In re Fry er , 235 Fe d. Appx. 951, 953 (3d Ci r. 2007). The Fryer Court did not resolve the ambiguity beca use eve n if the Rule wer e non-jurisdictional, the district c ourt had c orre ctly dismiss ed an untimely

appea l as the a ppellee ha d invoked Rule 8002 in moving to dismiss on ti meliness g rounds. Id. I n this case , Mr. Coleman asked the Ba nkruptcy Court for an extension of time to file

a notice of appea l twenty -two day s afte r that Court had enter ed final judgme nt. As t h e t en -day d ea d line for filing a motion had passed, see Fe d. R. Ba nkr. P. 8002(a) , Mr. Coleman could onl y proce ed with his untimely appea l to this Co u rt i f he demonstrated ex cusable neg lect. See Fe d. R.

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nkr. P. 8002(c) (2). The Ba nkrupt cy Court found that Mr. Coleman had not shown excusable neg lect and denied his motion to extend the time to file a n o t i ce o f appeal. There fore , Mr. Coleman’s notice of appea l, filed with the District Court on J uly 1, 2009, was untimely

. I f Rule 8002 is jurisdictional in nature, this Court lac ks subject-matter jurisdiction to hear Mr. Coleman’ s appea l and may dismiss the matter sua sponte

. Assuming, arguendo , that Rule 8002 is a claimproce ssing rule, the Court must still dismiss the matter as Country wide invoked the Rule in raising

a timeliness objection to the notice of appea l in its motion to dismiss. See Mot. to Dismiss [Dkt. # 10] at 3. B. Fe deral Rule of Ban kruptcy P roce dure 8009

Fe dera l Rule of Ba

nkruptcy Procedur e 8009 re quires that an A ppellant serve and file a br ief within fiftee n day s after entry of the a ppeal. See Fe d. R. Bankr . P. 8009. Fe dera l 3 Rule of B ankruptc y

Procedur e 8001 and L ocal Rule 8009-1 a uthorize district courts to dismi ss appea ls when appe llants file untimely briefs. See Fe d. R. Bankr . P. 8001(a) ( “An a ppellant' s failure to take any

step other than timely

filing a notice of a

ppeal . . . is g round only

for suc h action as the district court . . . dee ms appropriate, which may include dismissal of the appe al.”) ; L CvR 8009-1 (“I f, af

ter a n appea l has bee n noted . . . , the appe llant fails to serve a nd file a br ief within the time required by Ba nkruptcy Rule 8009, the District Court may , upon motion of the appellee . . . , or upon its own order , dismiss the appe al for f ailure to c omply

with [ the time limit ].”). Howeve r, the D.C. Circuit disfavor s summary dismiss al for pr ocedur al violations and instead re quires a district c ourt to “consider [] the circ umstances be fore [i t] and explain[ ] why it is

L ike Fe d. R. Bankr . P. 8002, Rul e 8009 wa s amende d eff ective D ece mber 1, 2009, 3 providing that an appe llant shall serve a nd file a br ief within 14 day s after entry of the a ppeal. -7-in the interest of justice to dismiss rather than to proce ed to the mer its.” English-Speaking Union v. Johnson , 353 F.3d 1013, 1022 ( D.C. Cir. 2004) (notingthat a cour t, as a fir st measure , usually issues an orde r to show ca use whe n a par

ty fails to timely

file a br ief); see also Canady v. Erbe Elektrome dizin GmbH

, 307 F. Supp. 2d 2, 9 (D.D .C. 2004) (noting the Circuit’s “pr efe renc e for an adjudication on the merits and a c orre sponding disfa vor for resolving litigation by

defa ult[ ]”). Nonethele ss, dismi ssal is warr anted a fter a party has ig nored r epeated orde rs by a cour t to file a brief. F or instance , in In re AO V Industries, Inc. , the D.C. Circuit upheld a district cour t’s dismiss al due to appe llant’s failure to file a brie f. See 798 F.2d 491, 494 ( D.C. Cir. 1986). Following a ten- month delay , the district court orde red the appellant to file a brief or fac e dismiss al. The district c ourt dismissed the case afte r the a ppellant fa iled to properly respond to the orde r and ig nored a

subsequent motion to dism iss. Id. After entry of the notice of appe al on August 21, 2009, Mr. Coleman was g rante d an initial ext ension of time to file a br ief, y et fa iled to comply with the Court’s order . The Court responde d by

order ing Mr . Coleman to show cause why the ca se should not be dismissed for failure to timely

file a br ief. See [Dkt. # 8] . Mr. Coleman re sponded with a motion to ex tend time. See [Dkt. # 9] . Followingthe sec ond extension of tim e, Country wide moved the c ourt to dismiss the ca se. See [Dkt. # 10] . Following Mr. Coleman’s unsucc essful appe al of the Court’s denial of his motion for re cusal, the Court re minded Mr. Coleman of his oblig ation to respond to the orde r to show ca

use and the motion to di smiss, and warne d that failure to do so could result in dismi ssal. See [Dkt. # 12] . Mr. Coleman re sponded twice more to dea dlines set by the Court, not with responses, but with motions t o extend tim e. The last ext ension of time, g rante d on April 23, 2010, made c lear

that no further

extensions would be gr anted a nd that failure by

Mr.

-8-Coleman to file his responses by May 14, 2010, could lead to dismissal of the matter

. See Minute Entry

Orde r on April 23, 2010. Mr. Coleman did not re spond, except to notice the Court that he is pursuing an appe al to the Supreme Court. See [Dkt. # 17] . Following this noti ce, Country wide re newe d its mot ion to dism iss. See [Dkt. # 18] . There fore , despite four substantial extensions of ti me, Mr. Coleman ha s y et to file a br ief, or a ny other pa pers c oncer

ning his a ppeal. This simpl y

is not a case wher e the Court is consider ing dismissal for a simple procedur al mistake or a slig ht delay , as ef forts to obtain a re sponse from Mr. Colema n have pr oven fr

uitless. J ustice does not pre vent dismissal as Mr. Coleman’s fa ilure to file any brief is just one of se vera l infirmities with thi s appea l. 4

C. Local Rule 7(b) L ocal Rule 7(b) provides a similar r oute for dismissal for f ailure to prose cute. Pursuant to the rule, the Court may treat as conc eded a

ny motion not oppos ed within the time limit s. See L CvR 7(b). L ocal Rule 7(b) is a “doc ket-mana g ement tool that fac ilitates effic ient and ef fec tive resolution of motions . . . .” Fox v . Am. Airlines, Inc. , 389 F.3d 1291, 1294 ( D.C. Cir. 2004); see also W

eil v. Seltzer, 873 F.2d 1453, 1459 ( D.C. Cir. 1989) (appe llant who failed to file response within tim e pre scribed by L ocal Rule 7(b) ’s pre dece ssor “is dee med to have waived his opposition” to the motion and “may not now complain on appe al”) . There fore , much like dismiss al for f

ailure to prose cute, L ocal Rule 7(b) allows for a court to mana g e its docket and to rule on motions wher e one pa rty is lax in responding , or fa ils to respond altog ether . Mr. Coleman has plac ed this liti g ation on hold since the e ntry of the notice of appe al on August 21,

I t also appea

rs that Mr. Coleman ha s failed to comply with Fed. R. B ankr. P. 8006 by 4 failing to file a de signation of issues to be prese nted on appe al and items to be include d in the rec ord. See also Part A, supra , Part C, infra. -9-2009, and has f ailed to re spond to Country wide’s motion to dismi ss despite expli cit war nings that L ocal Rule 7(b) applies to the instant matter. In acc ord with L ocal Rule 7(b) , the Court will g rant Country

wide’s motion to dismi ss as conc eded.

IV. CONCLUSION Ba sed on Mr. Coleman’ s untimely notice of a

ppeal, his re fusal to file a brief or show ca use, and his fa ilure to respond to Country wide’s motion to dismi ss despite notice that the motion could be g rante d as conc eded, this ca se will be dismissed. A memoralizing Or der

acc ompanies this Memorandum Opinion.

Date: June 2, 2010 /s/ ROSEMARY M. COL L YER United States District J udg e

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