In Re: Bruce J. Paswall
- Kenneth Karas
- 7:20-cv-05624
- U.S. District Court · Southern District of New York
- 3
In Re: Mark S. Tulis v. Grant Paswall, Judge Karas ordered a response to a request addressing an appeal’s missing appendix and extra-record materials.
The order affected Grant Paswall and Reid Paswall as appellants and Mark S. Tulis, as Chapter 7 Trustee of the Estate of Bruce J. Paswall, as appellee. It required the appellant to respond by November 16, 2020 and did not resolve the appellee’s requested relief.
What happened
In In Re: Mark S. Tulis, as Chapter 7 Trustee of the Estate of Bruce J. Paswall v. Grant Paswall and Reid Paswall, the appellee complained that the appellants filed an opening brief without the required appendix and referred to materials outside the record. The appellee also said the appellants had missed earlier deadlines and court-ordered requirements.
The appellee asked the court either to dismiss the appeal for failure to file the appendix or to affirm the Bankruptcy Court’s order and judgment without further review. Alternatively, the appellee asked the court to strike the opening brief and then dismiss the appeal for failure to prosecute.
Judge Kenneth M. Karas did not decide those requests in this order. Instead, the court directed the appellant to respond to the submission by November 16, 2020. The order therefore left the appellee’s requested dismissal, affirmance, and striking of the brief unresolved.
The detailed version
- In Re: Bruce J. Paswall · No. 7:20-cv-05624
- Kenneth Karas
- Nov. 13, 2020
Background
This matter is an appeal from a Bankruptcy Court proceeding. The appellee submitted a letter stating that the appellants had failed to file an appendix with their opening brief, even though the brief referred repeatedly to an appendix. The appellee also stated that the anticipated appendix would include documents from matrimonial proceedings and a lawsuit involving certain creditors of the debtor, although those materials were outside the record sent to the District Court and the appellants had not obtained permission to add them.
The court had previously given the appellant 30 additional days to file an initial memorandum of law and a motion to expand the record. After the appellants did not meet that extended deadline, the appellee asked the court to dismiss the appeal for failure to prosecute. On October 13, 2020, the court ordered the appellants to explain why the appeal should not be dismissed. The appellants later requested an additional 72 hours to file their opening brief and appendix and to respond to the show-cause order. The court granted that request but stated that there would be no further extensions.
The appellants filed their opening brief on November 5, 2020, but did not file the appendix or a separate response to the show-cause order. The appellee argued that the missing appendix prevented it from challenging the materials and left the court without documents the appellants relied on in their brief.
Appellee’s Requests
The appellee asked the court to dismiss the appeal because the appellants had not filed the required appendix. Alternatively, the appellee asked the court to summarily affirm the Bankruptcy Court’s order and judgment. If the court declined to dismiss the appeal on the appendix issue, the appellee asked it to strike the opening brief because the brief referred to an unfiled appendix and material outside the appellate record. The appellee then argued that striking the brief and the expiration of the appellants’ filing period would support dismissal for failure to prosecute under the applicable bankruptcy appellate rules.
Court’s Action
Judge Kenneth M. Karas did not grant or deny the appellee’s requests in the provided order. The order states that the appellant was to respond to the submission by November 16, 2020. The provided text therefore shows a direction to file a response, not a final ruling on dismissal, summary affirmance, or striking the brief.
Result
The appellee’s requested relief remained unresolved in the provided text. The order required a response by November 16, 2020.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.