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Friday, September 22, 2006

Bankruptcy Rule 8001 Dismissal. A bankruptcy debtor appealed a dismissal of his bankruptcy case but did not include a transcript of the proceedings below, as required by Bankrutptcy Rule 8006. The district court dismissed the appeal, without considering the merits, pursuant to Bankruptcy Rule 8001 because of the debtor's failure to include the transcript. The debtor appealed to the Second Circuit.

The Second Circuit adopted a flexible approach to Rule 8001 and declined to adopt any fixed rules about what district court must do in the Rule 8001 context and held that a court should exercise its discretion given the factual circumstances of a particular case. The Court stated that district courts should consider whether a lesser sanction (other than dismissal) might be appropriate, whether counsel's behavior evinces bad faith or a pattern of negligence, whether any party has suffered prejudice as a result of the attorney's conduct and whether the litigant should be granted the opportunity to rectify the problem.

In this case, the debtor, who acted pro se (but who was a bankruptcy lawyer), believed the transcript was not necessary because it contained only argument, not testimony. The Court found that dismissing the case had been an abuse of discretion. The Court noted that the district court did not give the debtor an opportunity to rectify the error. The Court was also concerned that serious questions on the merits, which might have been resolved in the debtor's favor, had been left unresolved.

The Court vacated the judgment of the district court and remanded the case for proceedings not inconsistent with its decision. The decision in In re Harris can be found here.

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