UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PERNELL WILKINS; SOLLIE WILKINS,

Plaintiffs-Appellants,

v. No. 98-2554

CYNTHIA S. WILKINS,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

(CA-98-135-3, BK-95-3154-T)

Submitted: April 20, 1999

Decided: May 20, 1999

Before WILKINS and WILLIAMS, Circuit Judges, and HALL,

Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Pernell Wilkins, Sollie Wilkins, Appellants Pro Se. Neal Orion Reid,

BANKRUPTCY LEGAL CLINIC OF RICHMOND, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Sollie and Pernell Wilkins appeal from the district court's orders

dismissing their appeal from the bankruptcy court for failure to prosecute and denying their motion for reconsideration. We vacate the district court's orders and remand this action to the district court for

further proceedings.

The Wilkinses timely noted their appeal from the bankruptcy

court's order dismissing their adversary proceeding, but failed to take

any further action to prosecute their appeal, including filing a designation of the record and a statement of issues for appeal or filing their

appeal brief. The district court dismissed the appeal for failure to

prosecute. After the district court denied the Wilkinses' motion for

reconsideration of the dismissal, the Wilkinses timely noted their

appeal to this court.

Bankruptcy Rule 8006 provides that an appellant must designate

the items to be included in the record on appeal and file a statement

of the issues within ten days of filing the notice of appeal. Bankruptcy

Rule 8009(a)(1) provides that the appellant must serve and file a brief

within fifteen days after entry of the appeal on the docket. To determine whether to dismiss a bankruptcy appeal for failure to timely file

the designation of the record, the statement of issues, or appeal brief,

the district court must exercise its discretion under Bankruptcy Rule

8001(a). See In re SPR Corp., 45 F.3d 70, 74 (4th Cir. 1995). In

applying Rule 8001(a), the district court must take one of the four

steps outlined in In re Serra Builders, Inc., 970 F.2d 1309 (4th Cir.

1992). Specifically, the court must: "(1) make a finding of bad faith

or negligence; (2) give the appellant notice and an opportunity to

explain the delay; (3) consider whether the delay had any possible

prejudicial effect on the other parties; or (4) indicate that it considered

the impact of the sanction and available alternatives," keeping in mind

that dismissal is a "harsh sanction which a district court must not

impose lightly." Id. at 1311. Proper application of the Serra Builders

test requires the court to consider and balance all relevant factors.

In this case, the Wilkinses admittedly did not timely file the designation of the record or the statement of issues as required by Rule

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8006, or file their appeal brief as required by Rule 8009(a)(1). The

district court dismissed the appeal for failure to prosecute. The district

court's failure to exercise its discretion by examining the Wilkinses'

failure to make these non-jurisdictional filings in light of Rule

8001(a) and the balancing test set forth in Serra Builders and

explained in SPR Corp., requires a remand. See James v. Jacobson,

6 F.3d 233, 239 (4th Cir. 1993).

Accordingly we vacate the district court orders dismissing the Wilkinses' appeal and denying reconsideration and remand this case to

the district court for application of Bankruptcy Rule 8001(a), as

explained in Serra Builders and SPR Corp . We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid

the decisional process.

VACATED AND REMANDED

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