* Pursuant to 5 TH C IR . 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this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED
March 10, 2004
Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________
No. 03-20768 Summary Calendar

_______________________

IN THE MATTER OF BAQAR SHAH,

Debtor,

*************************************

MAHENDRA R. MEHTA,

Appellant,

versus

BAQAR SHAH,

Appellee.

Appeal from the United States District Court For the Southern District of Texas

Houston Division H-03-CV-0808

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM: *

This case arises from the dismissal of Appellant Mahendra

Mehta’s appeal to the district court from the bankruptcy court.

Mehta initiated an adversary proceeding against debtor Baqar Shah2

seeking t he nondischargeability of a $2.42 million judgment for

fraud. However, because Mehta failed timely and properly to

replead his case in accordance with a court order, the bankruptcy

judge dismissed the case on January 14, 2003.

Mehta timely filed his notice of appe al on January 23,

2003, to t he district court. Under 11 U.S.C. § 8006, Mehta’s

statement of is sues was due ten days later on February 3, 2003.

Instead of filing the statement of issues on February 3rd as
required, Mehta filed a motion to exte nd time to file issues on

appeal. Because the motion was mistakenly filed in the bankruptcy

court, the district court was not given the opportunity to rule on

the motion. Mehta filed the statement of issues in the district

court on February 12, nine days late. On March 5, Shah filed a

motion to dismiss for failure to timely designate the issues for

appeal. The district court granted Shah’s motion to dismiss on

May 21, relying on the untimeliness of Mehta’s statement of issues.

Rul e 8001(a) states that “[a]n appellant’s failure to

take any step other than timely filing a notice of appeal does not

affec t the validity of the appeal, but is ground only for such

action as the district court . . . deems appropriate, which may

include dismissal of the appe al.” F E D

. R. B ANKR

. P. 8001(a). As
this rule makes clear, only the failure to file the notice of

appeal deprives the district court of jurisdiction. S ee also In re

CPDC, Inc. , 221 F.3d 693, 698 (5th Cir. 2000). The district court

was not compelled to dismiss this appeal, although it might in the3

exercise of sound discretion. I d

. at 6 98-99. Nevertheless,

“[d]ismissal is a harsh and drastic sanction that is not
appropriate in all cases.” Id . at 699.

In its order dismissing this appeal, the district court

wrote that “[b]ecause the appellant’s untimeliness, in filing his

issues on appeal, is unexplained

. . . this appeal has not been

properly perfected.” Thus, it appears that the court was under the

mistaken belief that the failure to comply with Rule 8006 somehow

affected its jurisdiction. We therefore V ACATE t he district

court’s order a nd R EMAND for application of the correct legal

standard. S ee In re CPDC , 221 F.3d a t 699-700; M atter of M.A.

Baheth Constr. Co. , 118 F.3d 1082 (5th Cir. 1997). However, it is

the district court’s duty, in the first instance, to determine

whether the brief delay occasioned by the procedural error in this

appeal ultimately warrants dismissal.

VACATED and REMANDED

.