At page 1305 Reviewing district court's appellate discretion standard20 citing cases“bankruptcy appeals have frequently been dismissed for the appellant's failure to comply with the duty of diligent prosecution, and we have dismissed civil appeals for failure of prosecution when the appellant's brief was not timely filed.”
- Camil Kreit v. Christopher Quinn, 690 F. App'x 283 (5th Cir. 2017).unpublished “Our review of the actions of the district court in its appellate role is for an *287 abuse of discretion.” In re Kelly Oil Co., 46 F.3d 66, 66 (5th Cir. 1995) (citing In re Braniff Airways, Inc., 774 F.2d 1303, 1305 (5th Cir. 1985) (per c…
- Est. of Petro v. Holland, 265 F. App'x 411 (5th Cir. 2008).unpublishedInt’l Bhd. of Teamsters v. Braniff Airways, Inc. (In re Braniff Airways, Inc.), 774 F.2d 1303, 1305 (5th Cir.1985).
- Goldblatt v. Ebert, 253 F. App'x 340 (5th Cir. 2007).unpublishedInt’l Bhd. of Teamsters v. Braniff Airways, Inc. (In re Braniff Airways, Inc.), 774 F.2d 1303, 1305 (5th Cir. 1985). “[T]his court has held that, in reviewing a district court’s dismissal of a bankruptcy appeal for non-jurisdictional defec…
- Goldblatt v. Ebert, 356 B.R. 545 (5th Cir. 2006).unpublished In re Braniff Airways, Inc., 774 F.2d 1303, 1305 (5th Cir.1985).
- Goldblatt v. A & W Indus. Inc, No. 01-10650 (5th Cir. Oct. 19, 2001).unpublishedMatter of Braniff Airways, Inc., 774 F.2d 1303, 1305 (5th Cir. 1985); Matter of CPDC, Inc., 3 Under Local Rule 8009.1(a) the appellant’s opening brief must be filed within twenty days after entry of the appeal on the docket.
- In the Matter Of: CPDC Inc Debtor Joseph Zer-Ilan Ideal Sys. Inc v. Gary Frankford Ben B Floyd, 221 F.3d 693 (5th Cir. 2000).published However, we have upheld a 14 district court’s decision to dismiss a bankruptcy appeal under Rule 8001(a) when the appellee has shown prejudice from the delay and when the appellant has exhibited “obstinately dilatory conduct.” See Braniff,…
- In re Frank Santora Equip. Corp., 227 B.R. 206 (E.D.N.Y. 1998).published(no abuse of discretion where district court dismissed appeal for appellant’s failure to file timely brief)
- In The Matter Of: Christico Petroleum Co., No. 97-40681 (5th Cir. Aug. 21, 1998).unpublished “In reviewing actions taken by a district court in its appellate role, we affirm unless the court has clearly abused its discretion.” In re Braniff, 774 F.2d at 1305 (internal citation omitted).
- French Bourekas Inc. v. Turner, 199 B.R. 807 (E.D.N.Y. 1996).published(no abuse of discretion where district court dismissed appeal for appellant’s failure to file timely brief)
- In the Matter of Ralph SCHERI, Debtor-Appellant, 51 F.3d 71 (7th Cir. 1995).published (finding no abuse of discretion in district court's dismissal after brief, without explanation, was not filed I9'k months after entry of appeal)
Show 8 more citing cases
- Nielsen v. Price, 17 F.3d 1276 (10th Cir. 1994).published Balaber-Strauss v. Reichard (In re Tampa Chain Co.), 835 F.2d 54, 55 (2d Cir.1987); International Bhd. of Teamsters v. Braniff Airways, Inc. (In re Braniff Airways, Inc.), 774 F.2d 1303, 1305 (5th Cir.1985).
- Howe v. Vaughan, 913 F.2d 1138 (5th Cir. 1990).publishedLama Drilling Co. v. Latham Exploration, 832 F.2d 1391 (5th Cir.1987); Matter of Braniff Airways, Inc., 774 F.2d 1303, 1305 (5th Cir.1985).
- HECI Expl. Co. v. Holloway, 862 F.2d 513 (5th Cir. 1988).published We therefore find no indication that the district court abused its discretion in declining to consider this issue. 22 See In re Braniff Airways, 774 F.2d at 1305.
- Lama Drilling Co. v. Latham Expl. Co., 832 F.2d 1391 (5th Cir. 1987).publishedIn the Matter of Braniff Airways, Inc., 774 F.2d 1303, 1305 (5th Cir.1985).
- Lama Drilling Co., Inc. v. Latham Expl. Co., Inc., James A. Latham v. Latham Expl. Co., Inc., Habitation Le Clerc, Inc. v. Latham Expl. Co., Inc., Silverkey Drilling Co., Inc. v. Latham Expl. Co., Inc., Latham Employees Trust Fund v. Latham Expl. Co., Inc., 832 F.2d 1391 (5th Cir. 1987).publishedIn the Matter of Braniff Airways, Inc., 774 F.2d 1303, 1305 (5th Cir.1985).
- Mehta v. Harris, 356 B.R. 557 (5th Cir. 2006).unpublishedSee In re Braniff Airways, 774 F.2d 1303, 1305 (5th Cir.1985).
- Jewelcor Inc. v. Asia Com. Co., 11 F.3d 394 (3d Cir. 1993).published Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir.1982); see also In re Braniff Airways, Inc., 774 F.2d 1303 , 1305 (5th Cir.1985).
- Permula Corp. v. Helson Pacheco, No. 19-50318 (5th Cir. Dec. 17, 2019).unpublished
At page 1304 Upholding dismissal under rule 8001(a) for dilatory conduct9 citing cases“obstinately dilatory conduct”
- Howard Kollinger v. R. Hoyle, 551 F. App'x 104 (5th Cir. 2013).unpublished Id. (quoting In re Braniff Airways, Inc., 774 F.2d 1303, 1304 (5th Cir.1985)). 5 .
- In the Matter Of: CPDC Inc Debtor Joseph Zer-Ilan Ideal Sys. Inc v. Gary Frankford Ben B Floyd, 221 F.3d 693 (5th Cir. 2000).published “obstinately dilatory conduct”
- Williams v. Viegelahn, No. 5:24-cv-01032 (W.D. Tex. July 11, 2025).See Matter of Braniff Airways, Inc., 774 F.2d 1303, 1304-05 (Sth Cir. 1985); see also In re Hall, 354 F. App’x 842, 843 (Sth Cir. 2009) (“Because Hall has not identified any error in the decision denying IFP, he has not briefed the relevan…
- Roth v. Mims, 298 B.R. 272 (N.D. Tex. 2003).publishedSee id. (quoting In re Braniff Airways, Inc., 774 F.2d 1303, 1304 (5th Cir.1985) and Pyramid Mobile Homes, Inc. v. Speake, 531 F.2d 743, 746 (5th Cir.1976)).
- S. Pac. Transp. Co. v. Voluntary Purchasing Groups, Inc., 229 B.R. 122 (E.D. Tex. 1999).publishedSee In re Braniff Airways, Inc., 774 F.2d 1303, 1304-1305 (5th Cir.1985).
- United States v. Manning, 220 B.R. 328 (E.D. Tex. 1998).published See generally In re Braniff, supra; Pyramid Mobile Homes, Inc. v. Speake, 531 F.2d 743 (5th Cir.1976); In re Scheri, supra; Dodson v. Runyon, 86 F.3d 37 (2nd Cir.1996). 1.
- Ovation Servs., LLC, No. 4:22-cv-04503 (S.D. Tex. Feb. 5, 2024).See, e.g., Matter of Braniff Airways, Inc., 774 F.2d 1303, 1304 (5th Cir. 1985); In re Nikolai, 5 F.3d 1495, at *2 (5th Cir. 1993); In Re Pequeno, 240 F.App’x. 634, 636 (5th Cir. 2007).
- Goodwill, No. 4:22-cv-04505 (S.D. Tex. Feb. 5, 2024).See, e.g., Matter of Braniff Airways, Inc., 774 F.2d 1303, 1304 (5th Cir. 1985); In re Nikolai, 5 F.3d 1495, at *2 (5th Cir. 1993); In Re Pequeno, 240 F.App’x. 634, 636 (5th Cir. 2007).
At page 1303 “review the district court's action with attention to 'the prejudicial effect of delay on the appellees and the bona fides of the appellant.”2 citing cases
- In the Matter Of: CPDC Inc Debtor Joseph Zer-Ilan Ideal Sys. Inc v. Gary Frankford Ben B Floyd, 221 F.3d 693 (5th Cir. 2000).published However, we have upheld a 14 district court’s decision to dismiss a bankruptcy appeal under Rule 8001(a) when the appellee has shown prejudice from the delay and when the appellant has exhibited “obstinately dilatory conduct.” See Braniff,…
Other citing cases
- Tammy Yori v. Ruiz, No. 19-1090 (3d Cir. July 23, 2019).unpublished
- Pequeño v. Schmidt (In Re Pequeño), 240 F. App'x 634 (5th Cir. 2007).unpublished
- Salter v. IRS, No. 00-60230 (5th Cir. Sept. 14, 2000).unpublished
- In re Salter, 251 B.R. 689 (S.D. Miss. 2000).published
- Nicoladze v. Lawler, 86 B.R. 69 (N.D. Tex. 1988).published
- In re Wiley, 184 B.R. 759 (N.D. Iowa 1995).published
v.
BRANIFF AIRWAYS, INC.
OPINION
ALVIN B. RUBIN, Circuit Judge.The district court dismissed an appeal from the bankruptcy court because the appellant’s brief was not filed within 15 days after entry of the appeal and, indeed, had not yet been filed I9V2 months later when the appeal was dismissed. Finding no abuse of discretion, we affirm.
This appeal to the district court from a bankruptcy court order was filed on September 14, 1983. Although Bankruptcy Rule 8009 requires the appellant to serve and file his brief within 15 days after entry of the appeal, no further action was taken. Upon inquiry by the district court on April 30, 1985, to determine the status of the ease, the appellant’s lawyer expressed the belief his brief had been filed. The lawyer checked his file and found the brief there, undelivered to the court. No copy had been served upon or mailed to the appellee. The district court dismissed the appeal because no explanation had been given for appellant’s failure either to file a brief or to monitor the case.
Under more egregious facts, we affirmed the dismissal of a bankruptcy appeal for failure timely to file a brief in Pyramid Mobile Homes, Inc. v. Speake,1 saying that, while “we fully recognize that indiscriminate exercise of the dismissal power for [such] derelictions ... may punish the innocent client for the unprofessional conduct of his counsel,”[2] “time is of the essence” in bankruptcy proceedings and this court should review the district court’s action with attention to “the prejudicial effect of delay on the appellees and the bona fides of the appellant.”[3]
There is no issue concerning the good faith of either the appellant or its counsel, but the delay in considering the appeal might well be prejudicial to the appellee and others. The appeal to the district court concerned the bankruptcy court’s dis-allowance of counterclaims against the former officers and directors of the bankrupt, not against the bankrupt itself, but, if the counterclaim had been allowed, these individuals might have been expected to seek indemnity from the bankrupt, Braniff Airways, Inc. In the meanwhile, Braniff had consummated its Plan of Reorganization on December 15, 1983, and, pursuant to that plan, other parties have invested substantial sums in reorganizing the airline. These investments must have been based, at least in part, as counsel for appellee asserts, on their review of the status of the various potential liabilities facing Braniff, including litigation on appeal.
[*1305] When a district court dismisses a case in which it is the trial court for dereliction of counsel, we have frequently held that dismissal is a penalty of last resort, to be imposed only after clear delay or contumacious conduct by the plaintiff and a finding that lesser sanctions would not cure the problem.[4] These cases do not state the standard for dismissal of an appeal. In reviewing actions taken by a district court in its appellate role, we affirm unless the court has clearly abused its discretion.[5] Bankruptcy appeals have frequently been dismissed for the appellant’s failure to comply with the duty of diligent prosecution,[6] and we have dismissed civil appeals for failure of prosecution when the appellant’s brief was not timely filed.[7]
Patently the issue is not what this panel might have done if we were the district court, but whether, having set a standard granting district courts discretion, we should deny in action what we have announced as precept. Instead, applying the discretion-based principle, we AFFIRM the district court’s judgment.
531 F.2d 743 (5th Cir.1976).
Rogers v. Kroger Company, 669 F.2d 317 (5th Cir.1982); Pond v. Braniff Airways, Inc., 453 F.2d 347 (5th Cir.1972); McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir.1981); Gray v. Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir.1981); Luna v. International Association of Machinists and Aerospace Workers, 614 F.2d 529, 531 (5th Cir.1980); Gonzalez v. Firestone Tire and Rubber Companies, 610 F.2d 241, 247 (5th Cir.1980); Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212 (5th Cir.1976); Brown v. Thompson, 430 F.2d 1214, 1216-17 (5th Cir.1970).
Pyramid Mobile Homes, Inc. v. Speake, supra, 531 F.2d at 746, quoting Godfrey v. Powell, 159 F.2d 330, 332 (1947).
See, e.g., In re Quevedo, 35 B.R. 117, 120 (D.P.R.1983); In re Weiss, 44 B.R. 285, 287 (E.D.N.Y.1984); West v. Falconer, 17 B.R. 929 (S.D.Ill.1982); In re Har-dway House Statuary, 76 F.R.D. 204 (E.D.Mo.1977).
Swinburn v. First Federal Savings & Loan, 487 F.2d 338 (5th Cir.1973); Clayton v. Jones, 485 F.2d 583 (5th Cir.1973); Jackson v. Hensley, 484 F.2d 992 (5th Cir.1973); Turner v. Duval County, 468 F.2d 919 (5th Cir.1972); Tidwell v. Dees, 464 F.2d 1297 (5th Cir.1972); see Louisiana World Exposition, Inc. v. Logue, 746 F.2d 1033, 1038 (5th Cir.1984); United States v. Meeks, 719 F.2d 809, 810 (5th Cir.1983).