In Re: Charles DeGennaro, III

Background

Charles DeGennaro, III appealed a decision in an action pending in the United States Bankruptcy Court for the Southern District of New York. He filed the appeal on November 5, 2019, but did not file the required appellate brief.

DeGennaro requested five extensions of time to file the brief. The court granted four of those requests and set successive deadlines of January 3, February 3, February 17, and March 2, 2020. When DeGennaro requested a fifth extension on March 4, 2020, Judge Cathy Seibel denied the request and ordered him to file the brief immediately. The case was transferred to Judge Halpern on March 17, 2020, and the brief still had not been filed.

Court’s Analysis

The court explained that Federal Rule of Civil Procedure 41(b) allows a district judge to dismiss an action for failure to pursue it. The court said that deciding whether to dismiss for this reason requires considering the length of the delay, whether the party was warned that further delays could lead to dismissal, possible prejudice to the opposing party, the balance between efficient case management and the party’s right to due process, and whether lesser penalties would be effective.

The court focused on DeGennaro’s five extension requests, the four extensions that had been granted, his failure to file the brief, and the warning that no further extensions would be granted. It stated that the failure to pursue the appeal had interfered with the court’s efforts to manage its docket and resolve cases in an orderly and timely way.

Order

Judge Philip M. Halpern did not dismiss the appeal in this order. Instead, he ordered DeGennaro to show cause in writing by July 6, 2020, why the action should not be dismissed without prejudice for failure to pursue it under Rule 41(b). The order states that failure to comply with the show-cause order would result in dismissal of the case for failure to pursue it.