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In re Conway

filed*fn*: August 5, 1991.

IN RE: LARRY CONWAY, DEBTOR, LARRY CONWAY, APPELLANT,
v.
STATESMAN MORTGAGE COMPANY, FKA FEDERAL FINANCIAL CORPORATION, APPELLEE



On Appeal from the Ninth Circuit Bankruptcy Appellate Panel Perris, Volinn, and Meyers, Bankruptcy Judge's, Presiding; D.C. No. CC-90-1166.

Farris, Alarcon, and T. G. Nelson, Circuit Judges.

MEMORANDUM

Larry Conway, a Chapter 13 debtor, appeals pro se the Bankruptcy Appellate Panel's ("BAP") dismissal of his appeal from the bankruptcy court's order lifting the automatic stay in favor of appellee Statesman Mortgage Company. Conway raises numerous issues which collectively indicate a contention that the BAP erred by dismissing his appeal for lack of diligent prosecution under Bankruptcy Appellate Panel Rule 9(b). We have jurisdiction over appeals from final orders of the BAP under 28 U.S.C. ยง 158(d), and we affirm.

We review a lower court's dismissal for failure to prosecute for abuse of discretion. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).

"[D]ismissal is a harsh penalty and is to be imposed only in extreme circumstances." Id. A showing of unreasonable delay creates a presumption of injury to the defense and is required to support a dismissal for lack of prosecution. Id. In determining whether unreasonable delay existed, we give deference to the lower court because it "is in the best position to determine what period of delay can be endured before its docket becomes unmanageable." Id.

We have recognized five factors to be considered by the lower court before it dismisses a case for lack of prosecution. See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir.), cert. denied, 470 U.S. 1007 (1985). These include: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Id. The lower court need not make specific findings to show that it considered these factors. Henderson, 779 F.2d at 1424. If no such findings are present, however, we will review the record independently to determine whether the lower court abused its discretion. Id.

Rule 9(b) of the Bankruptcy Appellate Rules provides that "when an appellant fails to file an opening brief timely, or otherwise fails to comply with the rules requiring processing the appeal to hearing, the panel clerk, after notice, shall enter an order dismissing the appeal."

Here Conway's opening brief on appeal to the BAP was due on July 9, 1990. On that date he requested and received an extension of time to file the brief until August 8, 1990. On August 8, 1990 Conway requested another extension, which the BAP granted, until October 4, 1990. On October 4, 1990 Conway requested yet another extension of time to file his opening brief. The BAP issued an order on November 8, 1990 granting an extension of time until November 15, 1990. The order noted that no further extensions would be granted and that failure to file an opening brief by November 15, 1990 would result in dismissal of the appeal. Conway did not file an opening brief until November 28, 1990.

Thus, the record indicates that Conway was given ample opportunity to prosecute his appeal. Conway consistently disregarded deadlines and ignored the BAP's warning by filing his brief thirteen days after the final deadline. Given Conway's dilatory behavior, the public's interest in expeditious resolution of litigation, and the BAP's interest in efficiently managing its docket, we hold that the BAP did not abuse its discretion by dismissing Conway's appeal for lack of diligent prosecution. See Henderson, 779 F.2d at 1424-25.

AFFIRME ...


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