United States District Court, M.D. Florida, Orlando Division
G. BYRON JUDGE
cause comes before the Court on Appellee's Motion to
Dismiss Appeal (Doc. 20), filed May 8, 2018. Appellant
responded in opposition on May 22, 2018 (Doc. 21). With
briefing complete, this matter is ripe. Upon consideration,
Appellee's Motion to Dismiss is due to be granted.
to Federal Rule of Bankruptcy Procedure (“BR
Rule”) 8018(a), Appellant's initial brief
was due on or before September 16, 2017. That date came
and went, and Appellant neither filed an initial brief nor
moved for an extension of time to file. Roughly eight months
passed-still, no brief was filed. Then, on May 8, 2018,
Appellee moved to dismiss the appeal due to Appellant's
egregious failure to timely file an initial brief. Appellant
opposes, arguing that dismissal is unwarranted under the
circumstances. The Court agrees with Appellee.
raises two arguments against dismissal. First, Appellant
avers that Appellee failed to confer in good faith as
required by Local Rule 3.01(g) before moving to dismiss.
(Doc. 21, pp. 1-7). This argument is wholly without merit
since Rule 3.01(g) does not require a movant to confer with
opposing counsel before filing a motion to dismiss.
See Local Rule 3.01(g) (“Before filing any
motion in a civil case, except a motion . . . to
dismiss . . ., the moving party shall confer with
counsel . . . .”).
next contends that dismissal is inappropriate because: (i) BR
Rule 8018(a) prescribes a discretionary dismissal
standard, (ii) Appellant acted with diligenc e “to move
the appeal forward, ” (iii) Appellee would not be
prejudiced by the denial of its motion to dismiss, and (iv)
Appellee failed to complain to Appellant about the untimely
brief before moving to dismiss. (Doc. 21, pp. 7-13).
first point is its best: dismissal under BR Rule 8018(a) is
discretionary. District courts in this Circuit
“may” dismiss an appeal for failure to timely
file an initial brief upon a showing of bad faith,
negligence, or indifference. Brake v. Tavorina (In re
Beverly Mfg. Co.), 778 F.2d 666, 667 (11th Cir. 1985).
“Dismissal typically occurs in cases showing
consistently dilatory conduct or the complete failure to take
any steps other than the mere filing of a notice of
Court is satisfied that Appellant's conduct in missing
the initial brief deadline by roughly eight months
constitutes “at the very least, blatant
negligence.” See NCT Sys., Inc. v. Good Gateway LLC
(In re Orlando Gateway Partners, LLC), No.
6:16-cv-29-RBD, Doc. 9, at *3 (M.D. Fla. Mar. 24, 2016)
(unpublished). As Appellee points out, Appellant has made
this same mistake at least three times in related actions,
which fortifies the Court's conclusion that
Appellant's conduct warrants dismissal
remaining arguments fail to move the needle. The substantial
length of time between the brief deadline and the filing of
Appellee's motion to dismiss undercuts Appellant's
argument that it has been diligently moving the appeal
forward. Further, that Appellee has not affirmatively
demonstrated prejudice is not dispositive. And finally,
Appellant's assertion that Appellee should have reminded
Appellant to file its brief is absurd.
it is ORDERED and ADJUDGED
that Appellee's Motion to Dismiss Appeal (Doc. 20) is
GRANTED. The case is
DISMISSED. The Clerk of Court is
DIRECTED to close both the lead case and the
 BR 8018(a)(1) provides that appellants
“must serve and file a brief within 30 days after the
docketing of notice that the record has been transmitted or
is available electronically.” The bankruptcy record was
transmitted to this Court on August 17, 2017, triggering the
start of the thirty-day time period for Appellant to file an
initial brief. (Doc. 14). The parties were electronically
served with the bankruptcy record the same day.
See Nilhan Fin., LLC v. Good
Gateway, LLC (In re Nilhan Hosp., LLC), No.
6:16-cv-2113-JA, Doc. 10 (M.D. Fla. Mar. 24, 2017);
Nilhan Fin., LLC v. Good Gateway, LLC (In re Orlando
Gateway Partners, LLC), No. 6:16-cv-2114-RBD, Doc. 12
(M.D. Fla. Mar. 7, 2017); NCT Systems, Inc. v. Good
Gateway, LLC (In re Orlando Gateway ...