In Re: Wythe Berry Fee Owner LLC
- Ho
- 1:23-cv-09358
- U.S. District Court · Southern District of New York
- 2
In re Wythe Berry Fee Owner, LLC, Judge Ho dismissed the bankruptcy appeal without prejudice after missed briefing deadlines and warnings.
The appellant’s bankruptcy appeal was dismissed without prejudice; the court also terminated all pending motions and closed the case.
What happened
In re Wythe Berry Fee Owner, LLC involved an appeal in which the appellant did not file the required opening brief.
The brief was initially due December 21, 2023. The court extended the deadline to January 8, 2024, and later warned that the case would be dismissed unless the appellant filed something by January 12. The appellant filed neither the brief nor an explanation.
The court dismissed the action without prejudice for failure to pursue the case or comply with court orders. Judge Dale E. Ho also directed the clerk to terminate all pending motions and close the case.
The detailed version
- In Re: Wythe Berry Fee Owner LLC · No. 1:23-cv-09358
- Ho
- Jan. 16, 2024
Background
The appellant filed the appeal on October 24, 2023. Under Bankruptcy Rule 8018, the appellant had 30 days after notice that the record was transmitted or available electronically to file an opening brief. The notice of the record was filed on November 21, 2023, making the opening brief due on December 21, 2023.
The appellant did not make a timely filing. On January 4, 2024, the court extended the deadline to January 8 and warned that failure to pursue the case would result in dismissal. The appellant then missed that deadline as well and filed neither an opening brief nor a letter explaining the delay. On January 9, the court gave another warning and required a filing by January 12. That deadline also passed without a submission.
Court’s Ruling
Federal Rule of Civil Procedure 41(b) allows a court to dismiss an action when a plaintiff fails to pursue it or comply with court rules or a court order. The court explained that it could dismiss the action on its own after notifying the plaintiff. Because it had received no response from the appellant or indication that the appellant intended to continue, the court dismissed the action without prejudice under Rule 41(b).
The court directed the clerk to terminate all pending motions and close the case. The opinion does not describe the underlying bankruptcy issue raised in the appeal.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.