940 F. 2d 661 - Munn Munn v. Michigan National Bank R

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and the record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

This is a pro se appeal from the dismissal by the district court of appellant's appeal to it from the bankruptcy court. The matter in the district court involved an appeal from the bankruptcy court's order of April 20, 1989, which denied several of appellant's motions as frivolous and found that appellant sought nothing more than to relitigate issues that had been previously heard and determined by the bankruptcy court. The district court dismissed the appeal for failure to file a brief.

The dismissal order states the date the notice of appeal was filed, the date the appeal was docketed, and that no brief had been filed. It cites Bankruptcy Rule 8009(a)(1) which requires that a brief be filed and served within 15 days after the appeal is docketed. Although the dismissal order makes reference to several documents filed by appellant, it notes that none of these documents appear to be appellant's brief on appeal, none follow the form required by the bankruptcy rules and none appear to be necessary or allowed by the applicable court rules. No other facts or circumstances are mentioned in the dismissal order.

On appeal to this court, appellant's brief argues only the merits of his bankruptcy appeal, which are not properly before this court and will not be addressed.

Upon consideration, we conclude that the district court did not abuse its discretion in dismissing appellant's appeal. See In re Tampa Chain Co., Inc., 835 F.2d 54, 55 (2d Cir.1987). "Not every failure to follow procedural rules mandate dismissal of the appeal." See In re Comer, 716 F.2d 168, 177 (3d Cir.1983). Dismissal is a drastic sanction. When dismissal is based on a party's non-jurisdictional procedural default, the "dismissal is proper only when bad faith, negligence or indifference has been shown." See In re Winner Corp., 632 F.2d 658, 661 (6th Cir.1980) (case in which this court set a standard for dismissal of appeal due to failure to file designation of record under the old bankruptcy rules).

Dismissal of the appeal in the present case was proper. The district court waited four months before dismissing the case. None of the documents filed by appellant appear to be his brief on appeal, none follow the form required by the bankruptcy rules nor do they appear to be necessary or allowed by the applicable court rules. Moreover, an examination of the history of the bankruptcy proceedings below and appellant's several appeals from those adverse proceedings reveals that appellant's institution and continuation of the action against the defendants has been unreasonable and vexatious. Such bad faith on appellant's part justifies dismissal of his appeal.

Accordingly, the district court's order of dismissal is hereby affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.