2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-30-2015

In Re: New Century TRS Holding

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Recommended Citation

"In Re: New Century TRS Holding" (2015). 2015 Decisions. Paper 1043.

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DLD-347 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1314

___________

In re: NEW CENTURY TRS HOLDINGS, INC., et al.,

 Debtors

ANITA B. CARR,

 Appellant

v.

JP MORGAN CHASE BANK, NA; 

CHASE HOME FINANCE, LLC; DOES 1-10 

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil No. 1:14-cv-00282)

District Judge: Honorable Sue L. Robinson

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 23, 2015

Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges 

(Opinion filed: September 30, 2015)

_________

OPINION*

_________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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After the United States Bankruptcy Court for the District of Delaware dismissed 

Anita B. Carr’s adversary action for lack of subject matter jurisdiction in early February 

2014, Carr filed an appeal in the United States District Court for the District of Delaware. 

When she did not file her designation of items to be included in the record of appeal and 

her statement of issues to be presented on appeal, Appellees JP Morgan Chase Bank, 

N.A., and Chase Home Finance, L.L.C., (“the Chase companies”) filed a motion to 

dismiss her appeal for lack of prosecution. Carr responded and filed a motion for an 

extension of time, citing an unspecified disability since 2001 and an orthopedic problem 

in February 2014. On May 19, 2014, the District Court denied the motion to dismiss 

without prejudice to a renewed motion, and granted the extension of time, permitting 

Carr to file the required documents on or before June 30, 2014, which she did on June 30, 

2014.

On August 7, 2014, Carr filed a motion for an extension of time to file her opening 

brief, explaining that she had surgery on her hand, her hand and arm were in a cast, and 

she was taking pain medications. In the motion and by an accompanying doctor’s note 

(that indicated that typing was restricted), she asked to be excused from filing until 

October 13, 2014. On September 17, 2014, the District Court granted the motion (which 

the Chase companies had opposed) and set a new briefing schedule, with Carr’s opening 

brief due on or before November 10, 2014. The District Court also notified Carr that 

“FAILURE TO TIMELY FILE APPELLANT BRIEF WILL LEAD TO DISMISSAL OF 

THE APPEAL.” On November 10, 2014, Carr filed a second motion for an extension of 

time to file her appellate brief. She stated (with the support of an additional doctor’s 
3

note) that she underwent surgery in mid-July and that the recovery period is typically 

three to six months. The Chase companies opposed her motion and filed another motion 

to dismiss the appeal for failure to prosecute. Carr promptly filed a lengthy response to 

the motion and a subsequent amendment to her response shortly thereafter. 

The District Court denied Carr’s second motion for an extension of time, granted 

the Chase companies’ motion to dismiss, and dismissed Carr’s appeal after weighing the 

factors of Poulis v. State Farm Fire and Casualty Company, 747 F.2d 863 (3d Cir. 1984). 

Carr appeals. 

We have jurisdiction to review the District Court’s ruling under 28 U.S.C. 

§ 158(d)(1). The District Court had jurisdiction over the matter under 28 U.S.C. 

§ 158(a)(1). Cf. Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692-93 (2015) 

(distinguishing orders dismissing bankruptcy actions from orders denying confirmation 

without prejudice to the proposal of a new plan). 

We review the propriety of the District Court’s dismissal of Carr’s bankruptcy 

appeal for abuse of discretion through the lens of the Poulis factors. See In re Jewelcor 

Inc., 11 F.3d 394, 397 (3d Cir. 1993). Specifically, we consider the District Court’s 

balancing of “(1) the extent of the party’s personal responsibility; (2) the prejudice to the 

adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a 

history of dilatoriness; (4) whether the conduct of the party . . . was willful or in bad 

faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of 

alternative sanctions; and (6) the meritoriousness of the claim or defense.” Emerson v. 

Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002) (citing Poulis, 747 F.2d at 868). On 
4

consideration of these factors, we conclude that no substantial issue is raised on appeal, 

so we will summarily affirm the District Court’s decision to dismiss the case. See 3d Cir. 

L.A.R. 27.4; 3d Cir. I.O.P. 10.6. 

Carr proceeded pro se, so the responsibility for prosecuting her case fell on her. 

See Briscoe v. Klaus, 538 F.3d 252, 258-59 (3d Cir. 2008) (“[I]t is logical to hold a pro 

se plaintiff personally responsible for delays in his case because a pro se plaintiff is solely 

responsible for the progress of his case . . . .”); Emerson, 296 F.3d at 190. 

The Chase companies suffered prejudice due to delays in the case, having had to 

expend resources to address the delay and Carr’s failures in meeting deadlines instead of 

defending the appeal on the merits. Although Carr offered a medical excuse for some of 

the delay, the many missed deadlines also evidenced a history of dilatoriness in the 

District Court action. 

Also, as the District Court concluded, there is evidence that Carr’s failure to 

prosecute her case was willful. Although Carr claimed that medical problems impeded 

her ability to type and restricted her ability to file, her filings of things other than her 

appellate brief (including the lengthy response to the second motion to dismiss) during 

the same period in which she claimed infirmity undermined her claim. Also, although 

she was expressly warned about the consequences of not filing her appellate brief, she 

filed another motion for an extension of time on the last day of the extended deadline. 

The District Court also explicitly considered whether lesser sanctions would be 

appropriate. Monetary sanctions would not have been an effective alternative against 
5

Carr, who was allowed by the Bankruptcy Court to proceed in forma pauperis. See

Emerson, 296 F.3d at 191. 

The District Court also concluded that Carr’s appeal from the Bankruptcy Court’s 

order dismissing the adversary action for lack of subject matter jurisdiction was without 

merit. That conclusion appears to be correct, but, regardless of whether the appeal could 

be deemed meritorious, it cannot be said that the District Court abused its discretion in 

concluding that on balance, dismissal was warranted given the presence of other factors 

weighing in favor of dismissal in this case. See Curtis T. Bedwell & Sons, Inc. v. Int’l 

Fid. Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988) (holding that not all Poulis factors must 

weigh in favor of dismissal). 

For these reasons, we will affirm the District Court’s decision to dismiss Carr’s 

appeal.