In Re: Windstream Holdings, Inc.
- Colleen McMahon
- 7:20-cv-07568
- U.S. District Court · Southern District of New York
- 2
In re Windstream Holdings: Judge McMahon gave the pro se appellant one final chance to brief its bankruptcy appeal before dismissal.
The pro se appellant and the pending bankruptcy appeal. The order gave the appellant until October 22, 2021, to file a brief and warned that failure to do so would result in dismissal with prejudice.
What happened
In Re: Windstream Holdings, Inc. concerns an appeal from a bankruptcy court. The appellant missed two court-ordered deadlines to file a brief and did not ask for more time or explain the failures.
The court said the repeated failures could support dismissal under the bankruptcy appeal rules. But because the appellant was representing itself, the court allowed one final opportunity to file a brief by October 22, 2021.
Judge McMahon ordered that the appeal would be dismissed with prejudice if no brief was filed by that date. The October 5 order did not decide the underlying bankruptcy dispute.
The detailed version
- In Re: Windstream Holdings, Inc. · No. 7:20-cv-07568
- Colleen McMahon
- Oct. 5, 2021
Background
The appellant, identified in the caption as “IRTH SOLUTIONS, LLC,” filed a notice of appeal from the Bankruptcy Court to the Southern District of New York on September 15, 2020. The district court set an initial schedule requiring the appellant’s brief and record by October 2, 2020. The appellant did not file a brief.
On April 20, 2021, the court set a second schedule, requiring the appellant’s brief by May 31, 2021. The appellant again did not file a brief. The opinion states that the appellant did not seek an adjournment or provide an explanation and had failed to file a brief for about one year.
Court’s Analysis
Federal Rule of Bankruptcy Procedure 8018 allows a district court, after notice, to dismiss a bankruptcy appeal when the appellant fails to file a brief on time or within an authorized extension. The court also considered factors including the length of the delay, notice of the possible consequences, prejudice from further delay, the need to manage the court’s docket while protecting due process, and whether lesser sanctions would be effective.
The court stated that the appellant’s repeated failure alone warranted dismissal. However, after considering the other factors—and particularly because the appellant was pro se, meaning unrepresented—the court decided to provide one last opportunity to proceed with the appeal.
Disposition
The court ordered the appellant to file its brief by October 22, 2021. It stated that if no brief was filed by that date, the appeal would be dismissed with prejudice. The order itself did not dismiss the appeal and did not reach the merits of the bankruptcy dispute. Judge Colleen McMahon entered the order on October 5, 2021.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.