In Re: Dulyn Group, Inc.
- Cathy Seibel
- 7:23-cv-06296
- U.S. District Court · Southern District of New York
- 6
In re Dulyn Group v. Mester Funding, Judge Seibel granted dismissal of Dulyn Group’s bankruptcy appeal because it missed required filings.
Dulyn Group, Inc.’s bankruptcy appeal was ended after the court granted the appellees’ motion to dismiss. The opinion did not decide the substance of the bankruptcy-court order.
What happened
In re Dulyn Group, Inc. involved an appeal from a bankruptcy-court order. Dulyn Group did not timely file or serve the required list of record materials and statement of issues by the deadline under Bankruptcy Rule 8009(a). It also did not respond to the district court’s later order, request more time, or oppose the motion to dismiss.
The court explained that these filings are required for a bankruptcy appeal to proceed. Under the rules, a late filing could be excused only if Dulyn Group showed a legally recognized reason for missing the deadline. Because Dulyn Group gave no explanation, the court found no basis to excuse the delay.
Judge Cathy Seibel granted the appellees’ motion to dismiss the appeal and directed the clerk to close the case. The opinion did not decide the substance of the bankruptcy-court order that Dulyn Group sought to challenge.
The detailed version
- In Re: Dulyn Group, Inc. · No. 7:23-cv-06296
- Cathy Seibel
- Oct. 3, 2023
Background
Dulyn Group, Inc. appealed an order issued by Bankruptcy Judge Sean H. Lane on June 30, 2023. Dulyn Group filed its notice of appeal on July 14, 2023. Federal Rule of Bankruptcy Procedure 8009(a) required it to file and serve two items within 14 days: a designation identifying the materials to include in the appellate record, and a statement identifying the issues it wanted the district court to consider.
The deadline was July 28, 2023. Dulyn Group did not timely file or serve either document. On September 11, 2023, the court ordered Dulyn Group to file the documents by September 25 or withdraw the appeal. Dulyn Group did neither. It also did not request an extension of time or respond to the appellees’ motion to dismiss the appeal.
Legal standard
The court explained that filing the designation and statement is mandatory. A late filing can be accepted only if the appellant proves “excusable neglect,” meaning a legally sufficient reason for missing the deadline under the circumstances. The court considered the factors identified by the Supreme Court, including possible prejudice, the length and effect of the delay, the reason for the delay and whether it was within the appellant’s control, and good faith.
The court rejected the appellees’ suggestion that a more flexible standard applied. It said that standard concerns disputes about the contents of documents that were filed, while this case involved the complete failure to file the required documents.
Court’s reasoning
The court held that Dulyn Group’s failure to file the required documents, failure to comply with the September 11 order, and failure to provide any explanation left no basis to find excusable neglect. Although the court assumed for purposes of analysis that Dulyn Group may have acted in good faith, that the appellees faced little prejudice, and that the delay might not have been substantial, those considerations did not overcome the absence of any explanation for missing clear deadlines.
Disposition
The court granted the appellees’ motion to dismiss the appeal and directed the clerk to close the case. The opinion did not reach the merits of the bankruptcy-court order that Dulyn Group appealed.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.