John Biedka

NOT RECOMMENDED FOR PUBLICATION
File Name: 26b0004n.06
BANKRUPTCY APPELLATE PANEL
OF THE SIXTH CIRCUIT
IN RE: JOHN S. BIEDKA; RAENETTE L. BIEDKA,
Debtors.
JOHN S. BIEDKA; RAENETTE L. BIEDKA,
Debtors-Appellants,
v.
U.S. TRUSTEE,
Trustee-Appellee.
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No. 24-8027
Appeal from the United States Bankruptcy Court for the Northern District of Ohio at Cleveland.
No. 24-10370—Suzana K. Koch, Bankruptcy Judge.
Argued: March 24, 2026
Decided and Filed: August 18, 2026
Before: BAUKNIGHT, Chief Bankruptcy Appellate Panel Judge;
GREGG and MERRILL, Bankruptcy Appellate Panel Judges.
_________________
COUNSEL
ARGUED: Charles J. Van Ness, VAN NESS LAW, Mayfield Heights, Ohio, for Appellants.
Andrew Beyer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Charles J. Van Ness, VAN NESS LAW, Mayfield Heights, Ohio, for
Appellants. Amy L. Good, Spencer Lutz, UNITED STATES DEPARTMENT OF JUSTICE,
Cleveland, Ohio, for Appellee.
MERRILL, J., delivered the opinion of the Panel in which BAUKNIGHT, C.J., and
GREGG, J., concurred. BAUKNIGHT, C.J. (pp. 18–25), delivered a separate concurring opinion.
>

No. 24-8027 In re Biedka Page 2
_________________
OPINION
_________________
CHARLES R. MERRILL, Bankruptcy Appellate Panel Judge.
Debtors John and Raenette Biedka (the “Debtors”) appeal from both an order denying their
motion for an extension of time to file a pretrial brief and an order dismissing their Chapter 7 case.
Because the Bankruptcy Court provided no explanation regarding its denial of the Debtor’s
extension request, we conclude the Bankruptcy Court abused its discretion. Relying on precedent
from the Sixth Circuit Court of Appeals, we further conclude that the Bankruptcy Court abused its
discretion when it dismissed the Debtors’ case under Bankruptcy Rule 7041.1 We therefore
reverse and remand on both issues.
ISSUES ON APPEAL
Debtors have stated the issues on appeal as follows:2
I. Whether the Bankruptcy Court erred or otherwise abused its discretion in
determining that Debtors’ case should be dismissed for failure to comply
with a Scheduling Order;
II. Whether the Bankruptcy Court erred or otherwise abused its discretion in
denying Debtors a discharge under 11 U.S.C. § 727;
III. Whether the Bankruptcy Court erred or otherwise abused its discretion in
dismissing Debtors’ case pursuant to 11 U.S.C. § 707(b)(1) and (b)(3);
1All further references to the Federal Rules of Civil Procedure will be “Rule ___.” All further references to
the Federal Rules of Bankruptcy Procedure will be “Bankruptcy Rule ___.”
2In Appellants’ Principal Brief, Debtors raise only two of these issues: (1) Whether the Bankruptcy Court
erred or otherwise abused its discretion in determining that Appellants’ bankruptcy case should be dismissed for failure
to timely comply with a Scheduling Order, and in denying Appellants’ Motion for Leave to File Witness and Exhibit
List and Trial Brief, Instanter; and (2) Whether the Bankruptcy Court erred or otherwise abused its discretion in failing
to consider whether Appellants’ bankruptcy case should be dismissed pursuant to 11 U.S.C. § 707(b)(3)(B). (Compare
Appellants’ Statement of the Issues on Appeal at 1, BAP Case No. 24-8027, ECF No. 10, with Appellants’ Principal
Br. at 11, BAP Case No. 24-8027, ECF No. 19.) The remainder of the issues are therefore waived. Kellar v. Yunion,
Inc., 157 F.4th 855, 882–83 (6th Cir. 2025); see Fed. R. Bankr. P. 8014(a)(8).

No. 24-8027 In re Biedka Page 3
IV. Whether the Bankruptcy Court erred or otherwise abused its discretion in
denying Debtors’ Motion for Leave to File Witness and Exhibit List and
Trial Brief, Instanter; and
V. Whether the Bankruptcy Court’s rulings and orders below were arbitrary
and capricious, unjust, and against the manifest weight of evidence.
JURISDICTION AND STANDARD OF REVIEW
The Panel has jurisdiction to hear appeals “from final judgments, orders, and decrees”
issued by a bankruptcy court pursuant to 28 U.S.C. § 158(a)(1). Because the United States
Bankruptcy Court for the Northern District of Ohio has authorized appeals to the Panel, and no
party has filed to have the appeal heard by a district court, this appeal is properly before the Panel.
28 U.S.C. § 158(b), (c); Fed. R. Bankr. P. 8005; Gen. Order No. 1997-27 (N.D. Ohio July 9, 1997).
“Orders in bankruptcy cases qualify as ‘final’ when they definitively dispose of discrete
disputes within the overarching bankruptcy case.” Ritzen Grp., Inc. v. Jackson Masonry, LLC,
589 U.S. 35, 37, 140 S. Ct. 582, 586 (2020) (citing Bullard v. Blue Hills Bank, 575 U.S. 496, 501,
135 S. Ct. 1686, 1692 (2015)). An order dismissing a bankruptcy case is a final order. Badalyan
v. Holub (In re Badalyan), 236 B.R. 633, 635 (B.A.P. 6th Cir. 1999). It “draws into question all
prior non-final rulings and orders,” like the Bankruptcy Court’s denial of the Debtors’ request to
extend the time to comply with the scheduling order. Pittman ex rel. Sykes v. Franklin, 282 F.
App’x 418, 423 (6th Cir. 2008).
An appellate court applies an abuse of discretion standard when reviewing both a decision
to dismiss a bankruptcy case and a determination of excusable neglect, or lack thereof. Estate of
Ruth Ann Johnson v. Law Offices of Davis A. Sims, PLLC, No. 25-6166, 2026 WL 2111795, at *2
(6th Cir. July 22, 2026); Turner v. City of Taylor, 412 F.3d 629, 649 (6th Cir. 2005). A bankruptcy
court abuses its discretion when it relies upon clearly erroneous findings of fact or when it
improperly applies the law or uses an erroneous legal standard. Johnson, 2026 WL 2111795, at
*2 (citing Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 554 (6th Cir. 2021)).
A bankruptcy court’s findings supporting dismissal of a bankruptcy petition are factual
determinations. Riverview Trenton R.R. Co. v. DSC, Ltd. (In re DSC, Ltd.), 486 F.3d 940, 944 (6th
Cir. 2007). Findings of fact are reviewed under the clearly erroneous standard. Fed. R. Bankr. P.

No. 24-8027 In re Biedka Page 4
8013. A finding of fact is clearly erroneous “when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” Tedeschi v. Falvo (In re Falvo), 227 B.R. 662, 663 (B.A.P. 6th Cir. 1998)
(citations omitted).
Conclusions of law are reviewed de novo. Nicholson v. Isaacman (In re Isaacman), 26
F.3d 629, 631 (6th Cir. 1994). “De novo review requires the Panel to review questions of law
independent of the bankruptcy court’s determination.” Cundiff v. Cundiff (In re Cundiff), 227 B.R.
476, 477 (B.A.P. 6th Cir. 1998) (citations omitted).
FACTS
The facts in this appeal are not in dispute. After the Debtors filed their Chapter 7 petition
in February 2024, Andrew R. Vara, United States Trustee - Region 9 (“UST”) filed a motion to
dismiss (“MTD”) under § 707(b)(1) and (3). In the MTD, the UST premised dismissal on Mr.
Biedka’s new well-paying job with Ford Motor Company.3 The Debtors objected to the MTD,
asserting that the totality of the circumstances underlying their financial situation warranted
remaining in Chapter 7 bankruptcy.
On July 9, 2024, the Bankruptcy Court held a preliminary hearing on the MTD and,
determining that an evidentiary hearing was necessary to resolve the dispute, proposed a hearing
date of October 17, 2024. On July 17, 2024, the Bankruptcy Court issued an order (“EHO”) setting
October 17, 2024, as the evidentiary hearing date on the MTD. The EHO required the parties to
file exhibit and witness lists (“Lists”) “[n]o later than one week before the evidentiary hearing
date” and a trial brief (“Brief”) “[a]t least three business days before the evidentiary hearing date.”
(Evid. Hr’g Order at 1–3, Bankr. No. 24-10370, ECF No. 27.) The EHO made clear that “[i]f a
party fails to comply with the requirements of this Order, such failure may result in dismissal,
default, sanctions, or other consequences the Court deems appropriate.” (Id. at 4.)
3The UST alleged that the Debtors provided proof of income showing that Mr. Biedka earns $4,768.61 in
gross income and $3,961.64 in net income every two weeks, with net monthly pay of $7,923.28. (Mot. to Dismiss at
3, Bankr. No. 24-10370, ECF No. 20.) Notwithstanding the Debtors’ increased income, the question of whether their
Chapter 7 case should have been dismissed for abuse under § 707(b)(3) is not before the Panel because the Bankruptcy
Court did not dismiss the bankruptcy case under that Code section.

No. 24-8027 In re Biedka Page 5
During a telephonic status conference on September 17, 2024, the parties requested an
extension of the discovery deadlines and a rescheduling of the evidentiary hearing to a later date.
The Bankruptcy Court agreed to extend discovery deadlines but denied the request to reschedule
the hearing in order to maintain efficiency and keep the case progressing. (Order Granting Mot.
to Extend Time for Disc., Bankr. No. 24-10370, ECF No. 37; Order Denying Mot. to Continue
Evid. Hr’g, Bankr. No. 24-10370, ECF No. 38.) Thus, the court again confirmed the October 17,
2024 evidentiary hearing on the MTD as well as all pretrial deadlines in the EHO.
The UST timely filed his Lists on October 8, 2024. The Debtors’ counsel, Charles Van
Ness (“Van Ness”) filed the Lists late on October 11, 2024, one day after the deadline.
Subsequently, the UST timely filed his Brief on October 11, 2024. Van Ness failed to timely file
the Debtors’ Brief three business days prior to the hearing. Citing the Debtors’ failure to file a
Brief, the UST filed a second motion to dismiss (“Second MTD”) on October 15, 2024. (Second
Mot. to Dismiss, Bankr. No. 24-10370, ECF No. 47.) The Second MTD did not cite to any
authority as the basis for relief. The Bankruptcy Court ordered oral arguments on the Second MTD
to be heard at the October 17, 2024 hearing.
On October 16, 2024, between at 8:18 p.m. and 9:35 p.m.,4 two days after the deadline and
on the eve of the hearing set for 1:30 p.m. the next day, Van Ness filed two versions of the Debtors’
Brief5 and a Motion for Leave to File Instanter (“Instanter Motion”), stating that the failure to
comply with the deadlines in the EHO was attributable to counsel’s own mistake and inadvertent
omission.6 (Trial Br. of Debtors, Bankr. No. 24-10370, ECF No. 50 (filed at 8:18 p.m.); Trial Br.
of Debtors, Bankr. No. 24-10370, ECF No. 51 (filed at 8:53 p.m.); Instanter Mot., Bankr. No. 24-
4 Several hours earlier, the attorney for the UST filed the parties’ stipulations of fact, which were not required
by the EHO. (Stipulations upon Mot. of the United States Trustee to Dismiss Case for Abuse Under 11 U.S.C.
§ 707(b)(1) and (3), Bankr. No. 24-10370, ECF No. 49.)
5The second Brief was reformatted to correct large blank spaces in the initial Brief, reducing the Brief from
eight to six pages.
6The Debtors’ Instanter Motion was filed “pursuant to Fed. R. Civ. P. 6(b)(2) due to mistake and an
inadvertent omission.” (Instanter Mot. at 1, Bankr. No. 24-10370, ECF No. 52.) Rule 6(b)(2) governs exceptions for
extending time, whereas Rule 6(b)(1)(B) governs extending time “on motion made after the time has expired if the
party failed to act because of excusable neglect.” We assume Van Ness intended to cite Rule 6(b)(1)(B) but
erroneously cited Rule 6(b)(2). In any event, the reliance on Rule 6 is misplaced because Bankruptcy Rule 9006
applied instead.

No. 24-8027 In re Biedka Page 6
10370, ECF No. 52 (filed at 9:35 p.m.).) In the Instanter Motion, Van Ness explained that he
mistakenly believed the Lists were due three business days (rather than seven days) before the
hearing, arguing a “busy schedule and recent experience with the Court’s 3-business day rule on
motion dockets led to the inadvertent mistake.” (Id.) As for his failure to timely file a Brief,
counsel argued:
With regard to the Trial Brief, Debtors’ counsel relied upon 25+ years of optional
briefing on contested motions (versus adversary proceedings) rather than a careful
reading of the Court’s scheduling order. This is the first contested evidentiary
hearing that counsel had scheduled before this Court,7 and will certainly not make
the same mistake again. Contrary to the assertions of the United State [sic] Trustee,
Debtors’ counsel has never considered or needed an opposing parties’ trial brief to
understand the facts and issues in a matter. This information was addressed (or
should have been) in discovery. The suggestion that a bankruptcy case should be
dismissed on a mere technicality is difficult to comprehend or justify where no
prejudice has resulted. Debtors should not be punished due to an unprecedented
and inadvertent by [sic] error by counsel.
(Id. at 1–2 (emphasis in original).)
At 10:42 a.m. on the morning of October 17, 2024, the Bankruptcy Court signed a one-
word order8 denying the Instanter Motion, which was not entered until 37 minutes before the
1:30 p.m. evidentiary hearing. (Order, Bankr. No. 24-10370, ECF No. 53.) Van Ness, thus, did
not learn of the denial until the Court informed him of such at the start of the hearing. The Court
then asked the parties to address the UST’s Second MTD. The UST argued that the Debtors’
failure to comply with the EHO prejudiced the UST’s ability to prepare for trial because Van Ness
“waited to file their trial brief until 8:53 PM last night (October 16, 2024).” (Order Granting Mot.
to Dismiss Case at 5, Bankr. No. 24-10370, ECF No. 57.) The UST asked the court to dismiss the
7As the Bankruptcy Court noted in its Dismissal Order, this statement is inaccurate. Van Ness, in fact, had
six previous contested matters scheduled before the Bankruptcy Court in the prior year, all of which had scheduling
orders also mandating that trial briefs were due three business days before the evidentiary hearing. (Order Granting
Mot. To Dismiss Case at 5 n.2, Bankr. No. 24-10370, ECF No. 57.)
8Rather than enter a traditional order, the Bankruptcy Court stamped the first page of Van Ness’s Instanter
Motion with the word “DENIED,” added the Court’s signature and date, and entered that single page into the record.
(Order, Bankr. No. 24-10370, ECF No. 53.) The Bankruptcy Court later stated in its order dismissing the case that
“[o]n October 17, 2024, the Court denied Debtors’ [Instanter Motion], without prejudice to the alternative relief that
was requested therein—to convert the case to Chapter 13.” (Order Granting Mot. to Dismiss Case at 5, Bankr. No.
24-10370, ECF No. 57.)

No. 24-8027 In re Biedka Page 7
case or otherwise rule in the UST’s favor on all issues of law and fact. The Bankruptcy Court
asked the Debtors about their willingness to convert the case to a Chapter 13 “in lieu of a more
severe result” (id.), but after a brief recess, the Debtors declined.
Instead, Van Ness attempted to address the UST’s dismissal arguments, insisting “there’s
been no prejudice. . . . They’ve been through thousands of these cases. They’re hardly prejudiced.”
(Order Granting Mot. to Dismiss Case at 6, Bankr. No. 24-10370, ECF No. 57.) Van Ness further
argued that “[a] trial brief in an evidentiary hearing is an onerous task and a burden for debtors
and their counsel to perform.” (Id.) As for his filing deficiencies, Van Ness stated: “I made a
mistake as far as the trial brief is concerned. I guess I made a mistake with regard to the witness
and exhibit list.” (Id.)
Van Ness then took issue with the requirement that parties submit trial briefs prior to the
hearing, stating: “[t]he argument that I have to lay out my entire trial strategy in a trial brief? That
doesn’t even make any sense. Nobody ever does that. . . .” (Id.) The Bankruptcy Court asked
counsel: “is the Debtor requesting to convert to Chapter 13 now, such that, the evidentiary hearing
does not need to go forward?” (Id.) The Debtors again declined to convert to Chapter 13, noting
their “intent was to be here today to testify and to have the U.S. Trustee present their case.” (Id.)
Van Ness added, “in the alternative of dismissal, if the Court was to find that cause exists for the
dismissal, we would ask for leave for a short period of time to convert the case at that point.” (Id.)
Upon conclusion of the hearing, the Bankruptcy Court orally granted the UST’s Second
MTD. In so ruling, the Bankruptcy Court explained it had “thought very carefully about the
conduct of future litigants and to deter similar litigants from such misconduct in the future.” (Id.)
The Bankruptcy Court added that it would be willing to consider a motion to reinstate the case and
convert to Chapter 13, should the Debtors file one (id. at 6–7), which they did not.
On October 31, 2024, the Bankruptcy Court entered an order dismissing the Debtors’ case
(the “Dismissal Order”) under Rule 41(b) as made applicable by Bankruptcy Rule 7041 and
9014(c). Observing that “[a] scheduling order ‘is not a frivolous piece of paper, idly entered,
which can be cavalierly disregarded by counsel without peril,’” (Dismissal Order at 7, Bankr. No.
24-10370, ECF No. 57 (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.

No. 24-8027 In re Biedka Page 8
1992) (citation modified))), the Bankruptcy Court explained that Rule 41(b) serves as a means to
achieve “management of its docket and avoidance of unnecessary burdens on the tax-supported
courts and opposing parties . . . [sic] A [court] must be given substantial discretion in serving these
tasks.’” (Id. at 7–8 (citing Sexton v. Uniroyal Chem. Co., 62 F. App’x 615, 618 (6th Cir. 2003)
(quoting Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999))).) Ultimately, the primary
issue leading to dismissal was Van Ness’s noncompliance with the deadlines in the EHO, although
the Dismissal Order held the Debtors, not their attorney, responsible for the failure to meet
deadlines: “The Court is familiar with Debtors’ counsel’s work and knows him to be a highly
competent and ethical attorney. Therefore, Debtors’ failure was due to their own fault, and the
first factor is satisfied.” (Dismissal Order at 9, Bankr. No. 24-10370, ECF No. 57.)
Notably, the Dismissal Order, entered two weeks after the hearing, was the first indication
of the Bankruptcy Court’s reliance upon Rule 41(b) as the basis for dismissing the case. Neither
the Bankruptcy Court nor the UST referenced Rule 41(b) at the October 17, 2024 hearing. The
Debtors had no opportunity to rebut the factors that the Bankruptcy Court weighed before
ultimately dismissing the case for their failure to prosecute.
The Debtors now appeal both the Bankruptcy Court’s denial of the Instanter Motion and
the Dismissal Order. This Panel held oral arguments on March 24, 2026, at which time Debtors’
counsel clarified that the missed deadlines were solely his mistake, not his clients’ mistake. Van
Ness also confirmed that he was wholly unaware that Rule 41(b) was at issue, until he received
the Dismissal Order two weeks after the hearing. The UST candidly acknowledged during oral
argument before the Panel that he did not seek dismissal of the Debtors’ case under Rule 41(b),
nor was he aware that the Bankruptcy Court was even considering it.
DISCUSSION
For the reasons outlined herein, the Panel finds that the Bankruptcy Court abused its
discretion in entering a one-word order denying the Instanter Motion without any explanation. The
Bankruptcy Court further abused its discretion by dismissing the bankruptcy case without first
giving notice of the basis for dismissal and by failing to satisfy the Sixth Circuit’s stringent
requirements for Rule 41-based dismissals due to attorney noncompliance.

No. 24-8027 In re Biedka Page 9
I. Denial of the Instanter Motion, Without Application of the Pioneer Factors,
Was Improper.
In their Instanter Motion, the Debtors cited Rule 6(b)(2) to support their request for an
enlargement of time to file their Brief after expiration of the deadline directed in the EHO. The
Debtors did not cite to any legal standard that would control the Bankruptcy Court’s decision
related to this request. The Bankruptcy Court entered a one-word order denying the Instanter
Motion on the morning of the evidentiary hearing. Subsequently, after filing this appeal, the
Debtors cited Rule 6(b)(1)(B) to support their contention that the Bankruptcy Court abused its
discretion in denying the Instanter Motion. However, Rule 6 does not apply in bankruptcy
proceedings at all. Instead, Bankruptcy Rule 9006 controls the computation of time, and extension
of deadlines, in both the main bankruptcy case and adversary proceedings related thereto. Further,
both Rule 6 and Bankruptcy Rule 9006 require a showing of excusable neglect in order to extend
a deadline after its expiration. Although the Debtors never mentioned excusable neglect nor assert
the appropriate test related to this standard, the Bankruptcy Court abused its discretion by entering
a single-word order denying the Instanter Motion.
The Supreme Court established the governing legal standard for excusable-neglect
determinations in Pioneer Investment Services Company v. Brunswick Associates Limited
Partnership, 507 U.S. 380, 113 S. Ct. 1489 (1993). Pioneer requires a trial court to balance four
principal factors when considering excusable neglect: (1) the danger of prejudice to the nonmoving
party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason
for the delay, including whether the delay was within the reasonable control of the moving party,
and (4) whether the late-filing party acted in good faith.9 Id. at 395; e.g., Nafziger v. McDermott
Int’l, Inc., 467 F.3d 514, 522 (6th Cir. 2006). Despite enunciating this test, the Supreme Court
noted that excusable neglect “is a somewhat ‘elastic concept’[.]” Pioneer, 507 U.S. at 392 (citation
omitted). The Sixth Circuit Court of Appeals has explained that the Pioneer factors “do not carry
equal weight; the excuse given for the late filing must have the greatest import. While [other
9The Sixth Circuit treats Pioneer as a four-factor test, having held that “[t]he plain language in Pioneer
suggests that the excusable neglect analysis comprises four factors and that the third factor, the reason for the delay,
includes the question of whether the delay was within the reasonable control of the movant.” Cmty. Fin. Servs. Bank
v. Edwards (In re Edwards), 748 F. App’x 695, 699 (6th Cir. 2019).

No. 24-8027 In re Biedka Page 10
factors] might have more relevance in a closer case, the reason-for-delay factor will always be
critical to the inquiry.” United States v. Munoz, 605 F.3d 359, 372 (6th Cir. 2010) (citations
omitted); see also Proctor v. N. Lakes Cmty. Mental Health, 560 F. App’x 453, 459–60 (6th Cir.
2014) (“The fact that the district court did not comb through each and every factor is not dispositive
because the determination of excusable neglect is an elastic concept and because not all of the
factors carry equal weight in each case.” (citations omitted)).
Appropriate analysis of the “excusable neglect” standard required the Bankruptcy Court to
apply the Pioneer factors to the facts of the case. Ballinger v. Smith (In re Smith), No. 20-8015,
2021 WL 212361, at *2 (B.A.P. 6th Cir. Jan. 21, 2021). Here, the Bankruptcy Court issued a
single-word order denying the Instanter Motion without any explanation. Although the facts of
this case are clear, and it is tempting to apply the Pioneer test at this stage, “[i]t is beyond this
Panel’s calling to make factual findings and weigh the Pioneer factors in the first instance.” Id.
Accordingly, the Panel will reverse the Bankruptcy Court’s decision and remand the issue for
proper application of the Pioneer factors.
II. Dismissal Under Rule 41
The Bankruptcy Court dismissed the Debtors’ Chapter 7 case pursuant to Rule 41(b), as
made applicable in contested matters by Bankruptcy Rule 9014(c). Rule 41(b) provides:
(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to dismiss the action or any
claim against it. Unless the dismissal order states otherwise, a dismissal under this
subdivision (b) and any dismissal not under this rule—except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule 19—operates as
an adjudication on the merits.
Fed. R. Civ. P. 41(b). Rule 41 can serve as “a safeguard against delay in litigation and harassment
of a defendant.” Acosta v. Reparto Saman Inc. (In re Acosta), 497 B.R. 25, 33 (Bankr. D.P.R.
2013) (citations omitted). Although a court may consider lesser sanctions, “[d]ismissal for lack of
prosecution is appropriate without consideration of lesser sanctions where the plaintiff has engaged
in ‘extreme conduct’, such as knowing disobedience of a court order.” Id. at 34 (citations omitted);
see Link v. Wabash R.R. Co., 370 U.S. 626, 630–32, 82 S. Ct. 1386, 1388–89 (1962) (finding that
federal courts, even sua sponte, may dismiss a case for any of the reasons prescribed in Rule 41(b)).

No. 24-8027 In re Biedka Page 11
Dismissals under Rule 41(b) “‘operate[ ] as an adjudication on the merits,’” unless the dismissal
order states otherwise. Bearup v. Cintas Corp., No. 1:21-cv-151, 2025 WL 2163701, at *2 (S.D.
Ohio July 30, 2025) (quoting Fed. R. Civ. P. 41(b)).10
The Sixth Circuit has adopted the following four-part test for evaluating whether a case
should be dismissed for failure to prosecute under Rule 41(b):
(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether
the adversary was prejudiced by the dismissed party’s conduct; (3) whether the
dismissed party was warned that failure to cooperate could lead to dismissal; and
(4) whether less drastic sanctions were imposed or considered before dismissal of
the action.
Knoll, 176 F.3d at 363. While none of the factors is typically dispositive on its own, a case is
properly dismissed where there is a clear record of delay or “contumacious conduct.” Id. (citing
Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980)); see also Schafer v. City of Defiance
Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008) (deeming Rule 41(b) “a harsh sanction,”
appropriate where there is “a clear record of contumacious conduct by the plaintiff”). The Sixth
Circuit has been “reluctant to uphold the dismissal of a case . . . merely to discipline an errant
attorney because such a sanction deprives the client of his day in court.” Knoll, 176 F.3d at 363
(quoting Buck v. U.S. Dep’t of Agric., Farmers Home Admin., 960 F.2d 603, 608 (6th Cir. 1992)).
Here, the Bankruptcy Court premised its dismissal of the Debtors’ case on the UST’s
Second MTD, a pleading which sought dismissal as a sanction for the Debtors’ failure to timely
file their Brief and Lists. Such a sanction was appropriate, the UST argued, because the EHO
10The Debtors incorrectly assert that the Bankruptcy Court’s use of Rule 41 in a contested matter was
procedurally improper, arguing that Bankruptcy Rule 7041 is typically applied to adversary proceedings rather than
contested matters. (Appellants’ Br. at 31, BAP Case No. 24-8027, ECF No. 19.) While it is true that Bankruptcy
Rule 7041 incorporates Rule 41 in adversary proceedings, Bankruptcy Rule 9014(c) makes Rule 41 applicable in
contested matters such as the present dispute. See Fed. R. Bankr. P. 9014(c)(1) (“Unless this rule or a court order
provides otherwise, the following rules apply in a contested matter: . . . 7041 . . . .”).
The Debtors also incorrectly assert that dismissal under Rule 41(b) “is not an independent power of the
court.” (Appellants’ Br. at 31, BAP Case No. 24-8027, ECF No. 19.) Although Rule 41(b) provides for dismissal
“on the motion of the defendant,” district courts have discretion to dismiss an action sua sponte pursuant to Rule 41(b).
See, e.g., Link, 370 U.S. at 629–30 (“The authority of a federal trial court to dismiss a plaintiff’s action with prejudice
because of his failure to prosecute cannot seriously be doubted.”); Rogers v. City of Warren, 302 F. App’x 371, 375
n.4 (6th Cir. 2008) (“[I]t is well-settled [sic] that the district court can enter a sua sponte order of dismissal under Rule
41(b).”); Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (holding the same).

No. 24-8027 In re Biedka Page 12
provided that “[i]f a party fails to comply with the requirements of this Order, such failure may
result in dismissal, default, sanctions, or other consequences the Court deems appropriate.” (Evid.
Hr’g Order at 4, Bankr. No. 24-10370, ECF No. 27.) The UST then explained that he was
prejudiced by the Debtors’ failure to file a brief and thereby prevented from preparing for trial.
The UST did not cite Rule 41, instead arguing that precedent supported dismissal in circumstances
where a party had not complied with a pretrial order. Moreover, the UST did not argue for the
application of Rule 41 at the hearing on his Second MTD. Nonetheless, the Bankruptcy Court
raised and applied Rule 41 for the first time in the written order it issued two weeks later.
Therefore, the dismissal in this case was based on the repeated non-compliance with the
EHO by Van Ness rather than any misconduct by the Debtors. Specifically, the UST filed the
Second MTD because Van Ness failed to timely file the Debtors’ Brief after belatedly filing the
Debtors’ Lists. The Dismissal Order allocates responsibility for the late filings to the Debtors
themselves, but there is absolutely nothing in the record to support this determination. Instead, the
factual recitation in the Dismissal Order primarily addresses the actions, or inactions, of Van Ness,
not his clients. In fact, the Dismissal Order quotes Van Ness’s acceptance of responsibility for
these failures. See supra at p. 7. At no time did Van Ness (or the UST, for that matter) ever
suggest that the Debtors were in any way responsible for non-compliance with the EHO. As such,
the Bankruptcy Court’s factual finding was clearly erroneous.
Where the misconduct warranting dismissal is that of the attorney, not the client, the Sixth
Circuit has applied the four-factor test more stringently. In Lovingood v. Monroe County, the
Circuit reaffirmed this long-held stance. No. 22-5022, 2022 WL 17069662, at *5 (6th Cir. Nov.
17, 2022). The suit in Lovingood arose out of injuries the plaintiff sustained during a traffic stop.
Id. at *1. During the initial phase of the case, the court grew frustrated with the plaintiff’s inability
to comply with pretrial orders. Id. at *2. At a pretrial conference, the court identified certain
issues that the plaintiff, or his attorney, needed to address in order for the case to proceed to trial.
Id. The court then rescheduled the trial and set a second pretrial conference. Id. At the second
pretrial conference, the plaintiff had not cured the issues identified at the previous hearing, so the
court dismissed the case with prejudice. Id. at *2–3.

No. 24-8027 In re Biedka Page 13
In Lovingood, the District Court had included a standard dismissal warning in both of its
scheduling orders. 2022 WL 17069662, at *7. To emphasize this warning, the District Court
bolded and italicized the dismissal language in the second pretrial order. Id. Despite these two
boilerplate warnings, the Sixth Circuit was “not satisfied that Lovingood’s counsel had adequate
notice that the court was contemplating its harshest sanction.” Id. For this reason, the Circuit
determined that the district court had abused its discretion in dismissing the case.
It explained its more rigorous application of the four-factor test for such cases where, as
here, dismissal hinges on the party’s attorney’s conduct rather than the party’s own actions:
With regard to the first factor, this court has stated that dismissal of an action for
an attorney’s failure to comply should only be ordered where there is a clear record
of delay or contumacious conduct. Similarly, with regard to the third factor, the
court has explained that where a plaintiff has not been given notice that dismissal
is contemplated, a district court should impose a penalty short of dismissal unless
the derelict party has engaged in bad faith or contumacious conduct. Finally, with
regard to the fourth factor, although it is clear that the failure of the district court to
impose or make explicit its consideration of lesser sanctions is not fatal, this court
recently stated that, in the absence of such consideration, and in the absence of
contumacious conduct, an alternate sanction that would protect the integrity of
pretrial procedures should be utilized rather than dismissal with prejudice.
Id. at *3, (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 367–68 (6th Cir. 1997)).
The Sixth Circuit in Lovingood began its analysis by acknowledging that the Supreme
Court “has afforded no merit to the contention that dismissal of [a party’s] claim because of his
counsel’s unexcused conduct imposes an unjust penalty on the client.” Id. (quoting Link, 370 U.S.
at 633). However, the Circuit explained: “recognizing that the sanction of dismissal with prejudice
deprives a plaintiff of his day in court due to the inept actions of his counsel, this [c]ourt has
expressed an extreme reluctance to uphold the dismissal of a case merely to discipline a party’s
attorney.” Id. (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 590 (6th Cir. 2001)).
Due to these concerns, the Circuit explained it has “applied the four-factor test [for
application of Rule 41] more stringently in cases where the conduct of a [party’s] attorney is the
reason for dismissal” and has “increasingly emphasized directly sanctioning the delinquent lawyer
rather than an innocent client.” Id. (quoting Mulbah, 261 F.3d at 591); see also Carter, 636 F.2d
at 161 (“Dismissal is usually inappropriate where the neglect is solely the fault of the attorney.”).

No. 24-8027 In re Biedka Page 14
Lovingood “acknowledged that ‘a pattern of this type of behavior [tardy filings] may be
sanctionable’” but also pointed out that the Sixth Circuit had previously found dismissal
unwarranted “where a district court judge had not made a specific finding of bad faith or
prejudice.” 2022 WL 17069662, at *4 (discussing Stough v. Mayville Cmty. Schs., 138 F.3d 612,
613–15 (6th Cir. 1998)).
Applying Lovingood’s more stringent test, this Panel concludes that the Bankruptcy
Court’s decision did not satisfy three prongs: first, the Sixth Circuit has held that use of Rule 41
dismissal as a sanction for attorney misconduct or noncompliance effects an unfair result because
it deprives the client, a potentially innocent party, of his or her day in court absent some
contumacious conduct which has not been established here; second, the Debtors did not receive
sufficient due process in relation to the dismissal of their case pursuant to Rule 41; third and finally,
the court failed to adequately offer alternative sanctions to dismissal. The Panel will address these
issues seriatim below.
a. Dismissal as a Sanction for Attorney Misconduct or Noncompliance
In this case, the Bankruptcy Court premised its dismissal entirely upon Van Ness’s failure
to meet deadlines established by the EHO. Nothing in the Dismissal Order indicates that the
Debtors’ actions, or inactions, caused Van Ness to miss the filing deadlines. Moreover, the
Dismissal Order is devoid of any findings of willful or bad faith conduct by the Debtors or that
Van Ness intended to thwart the litigation. (Dismissal Order at 9, Bankr. No. 24-10370, ECF No.
57.) Nonetheless, the Dismissal Order summarily assigns the blame for the missed deadlines to
the Debtors. Clearly, it is the responsibility of an attorney to track, and meet, deadlines set by a
court during litigation. See Ohio Prof. Cond. Rule 1.3 cmt. 3. In effect, the Bankruptcy Court
transferred responsibility for meeting these deadlines from Van Ness to his clients and thereby
“deprive[d] [the Debtors] of [their] day in court due to the inept actions of [their] counsel.”
Mulbah, 261 F.3d at 590 (quoting Patterson v. Grand Blanc Twp., 760 F.2d 686, 688 (6th Cir.
1985)). The findings in the Dismissal Order do not meet the more stringent standard required by
Mulbah and Lovingood for a Rule 41 dismissal. Finding no clear record of delay or contumacious
conduct on Van Ness’s part, the first prong of Lovingood’s enhanced Rule 41 test for dismissal
has not been met.

No. 24-8027 In re Biedka Page 15
b. Insufficient Notice of Dismissal under Rule 41
In this matter, prior to entry of the Dismissal Order, the Debtors did not receive notice from
either the UST or the Bankruptcy Court of the possibility that their case could be dismissed
pursuant to Rule 41(b). Although the Debtors were on notice regarding possible dismissal under
§ 707(b), and were prepared to address that issue, Rule 41 is a separate form of relief which has a
different legal standard. As such, the Debtors and their counsel had neither sufficient notice of,
nor opportunity to rebut, the applicability of Rule 41 to their case.
The Sixth Circuit requires trial courts to issue a form of heightened notice to a party whose
case might be dismissed under Rule 41. See Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir.
1988). The Circuit has explained that it has “frequently reversed district courts for dismissing
cases because litigants failed to appear or comply with pretrial orders when the district courts did
not put the derelict parties on notice that further noncompliance would result in dismissal.”
Mulbah, 261 F.3d at 593 (quoting Vinci v. Consol. Rail Corp., 927 F.2d 287, 288 (6th Cir. 1991))
(emphasis added). This heightened notice requirement is contained in the third prong of the Rule
41 test and comes in the form of a warning which must be issued prior to the entry of an order of
dismissal. To comply with the third prong, the warning must be directed at the noncompliant
party, not contained in the boilerplate language of a pretrial order. See Vinci, 927 F.2d at 288.
Here, the Debtors did not receive any notice regarding dismissal under Rule 41, much less
a warning that their noncompliance would lead to dismissal. In fact, the non-specific language
contained in the pretrial order which vaguely threatens dismissal is the only reference to dismissal
in this proceeding other than the motions filed by the UST.11 Coupled with the complete lack of
a directed warning in this case, the Bankruptcy Court’s boilerplate language in the EHO, “while
not to be construed as a hollow warning,” does not constitute “the kind of warning [the Circuit]
envisioned in Harris when [it] spoke of notice that “‘further non-compliance would result in
11Likewise the district court’s warning in Lovingood, 2022 WL 1709662, at *7, the boilerplate warning
language in the Bankruptcy Court’s EHO did not by itself constitute an adequate warning satisfying the fourth prong
of the stringent Rule 41 test.

No. 24-8027 In re Biedka Page 16
dismissal.’” Vinci, 927 F.2d at 288 (quoting Harris, 844 F.2d at 1256). The third prong of
Lovingood’s enhanced Rule 41 test for dismissal has not been met.
c. Failure to Consider Alternate Sanctions to Dismissal
The fourth part of the Rule 41 test considers whether a trial court employed alternative
sanctions in lieu of dismissal. When considering the fourth part of the test, the Sixth Circuit has
often described it as deeply “intertwined” with the “question of adequate notice.” See Mulbah,
261 F.3d at 593. In practical terms, this has meant that the Circuit has “frequently reversed district
courts for dismissing cases because litigants failed to appear or comply with pretrial orders when
the district courts did not put the derelict parties on notice that further noncompliance would result
in dismissal.” Vinci, 927 F.2d at 288 (quoting Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir.
1988)).
Accordingly, the Panel could terminate its review by noting the failure of notice in this
case and referring to the analysis on that issue herein above. However, in Mulbah, the Sixth Circuit
also emphasized that “[t]he sanction of dismissal is appropriate only if the attorney’s actions
amounted to failure to prosecute and no alternative sanction would protect the integrity of the
pretrial process.” 261 F.3d at 594 (quoting Carter, 636 F.2d at 161); see also Lovingood, 2022
WL 17069662, at *3. Given that the Bankruptcy Court in this matter explicitly addressed the
fourth part of the test, and the Circuit has expressed a preference for the use of alternate sanctions
instead of dismissal, the Panel will analyze the alternative offered by the Bankruptcy Court.
Here, the Bankruptcy Court failed to offer alternative sanctions of the kind that the Sixth
Circuit’s precedent recognizes as appropriate for the circumstances. Although the Bankruptcy
Court proposed conversion to Chapter 13 as an alternative to dismissal, conversion is not an
alternate “sanction,” but a separate form of relief available to debtors at virtually any time
notwithstanding their counsel’s behavior or impact on the case.12 See 11 U.S.C. § 706(a) (“The
12In brief, a Chapter 13 proceeding allows debtors to retain their assets and receive a discharge in exchange
for periodic payments to their creditors over a period of three to five years. It is possible that debtors in certain
circumstances may conceive of Chapter 13 as a form of sanction because of the eligibility requirements for Chapter 7
imposed by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“the BAPCPA”). Under the
BAPCPA, some debtors who have filed a Chapter 7 bankruptcy may be deemed ineligible based on a statutory means
test that balances their income level against certain allowable expenses. See 11 U.S.C. § 707(b)(2). Where the means

No. 24-8027 In re Biedka Page 17
debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at
any time, if the case has not been converted under section 1112, 1208, or 1307 of this title.”).
Instead, the Circuit emphasized using “alternate sanction[s]” that correct the underlying harm
created by the bad acts of the attorney as a precursor to dismissal. Mulbah, 261 F.3d at 593;
Lovingood, 2022 WL 17069662, at *3 (quoting Harmon, 110 F.3d at 368). Such sanctions could
come in the form of “levying a fine, barring [the attorney] from participating in oral argument, or
any other disciplinary action.” Id.; see also, e.g., In re Lebbos, 385 B.R. 737, 752 n.42 (Bankr.
E.D. Cal. 2008), aff’d in part, 422 B.R. 235 (E.D. Cal. 2009), aff’d, 362 F. App’x 863 (9th Cir.
2010) (suggesting reprimands, fines, suspensions, the imposition of costs or attorney fees, the
preclusion of claims or defenses, and/or the presentation of evidence as part of a party’s case in
chief). None of these lesser penalties appear to have been considered by the Bankruptcy Court
prior to the dismissal of the Debtors’ case.
As the Lovingood court reaffirmed, “in the absence of contumacious conduct, an alternate
sanction that would protect the integrity of pretrial procedures should be utilized[.]” 2022 WL
17069662, at *4 (citation omitted). Due to the absence of a clear record of contumacious conduct
in this case, coupled with the lack of an adequate alternative sanction, this Panel is not satisfied
that the Bankruptcy Court appropriately employed dismissal under Rule 41. For the reasons stated,
we find that the Bankruptcy Court abused its discretion when it denied the Debtors’ Instanter
Motion without explanation and when it dismissed their case under Bankruptcy Rule 7041.
CONCLUSION
For the foregoing reasons, the Bankruptcy Court’s denial of the Instanter Motion and
dismissal of the Debtors’ bankruptcy case is REVERSED and REMANDED for further
proceedings.
test determines that a debtor is ineligible for Chapter 7, their case will be dismissed, or they have the option to convert
to a Chapter 13. Even in these circumstances, Chapter 13 is an alternative form of relief, not a sanction.

No. 24-8027 In re Biedka Page 18
_________________
CONCURRENCE
_________________
SUZANNE H. BAUKNIGHT, Chief Bankruptcy Appellate Panel Judge, concurring.
Every judge – male or female, young or old, new or experienced – has every right – indeed
an obligation – to set a standard for his or her courtroom, including a requirement that parties and
their counsel follow all court rules and orders. Court rules and procedures, after all, provide
consistency and predictability, which every party seeks. Equal justice under the law is impossible
without them. While I agree with the Panel’s reversal and remand of the Bankruptcy Court’s
decisions to deny the Instanter Motion and dismiss the Debtors’ bankruptcy case under Rule 41(b),
I write separately to discuss some of the possible options for the Bankruptcy Court’s consideration
on remand and to address directly Mr. Van Ness’s obstinate and disrespectful approach to the
Bankruptcy Court’s requirements.
The Instanter Motion, which was filed at 9:35 p.m. the night before the scheduled
evidentiary hearing, reads, in its entirety:
Now come Debtors, by and through counsel, and hereby move this Honorable Court
for leave to file their Witness and Exhibit List and Trial Brief in this matter,
instanter, as filed on July 31, 2024 [sic] as Docket No. 46, and October 16, 2024 as
Docket Nos. 50/51, pursuant to Fed. R. Civ. P. 6(b)(2) due to mistake and an
inadvertent omission.
For cause, Debtors’ counsel did not become realize [sic] that the Witness and
Exhibit lists were due 7 days before the Evidentiary Hearing, and was under the
mistaken belief it was due three (3) business days in advance. Although Debtors’
counsel filed the Witness and Exhibit List three (3) business days, [sic] a more
careful review of the Contested Matter Scheduling Order revealed the 7-day
requirement. Debtors’ counsel did not intentionally flaunt the deadline, and
respects the Court’s authority to establish new standards for matters in her Court.
Unfortunately, a busy schedule and recent experience with the Court’s 3-business
day rule on motion dockets led to the inadvertent mistake. Furthermore, Debtors’
counsel did not realize the error until receiving the renewed Brief of the United
States Trustee to Dismiss the case.. [sic]
With regard to the Trial Brief, Debtors’ counsel relied upon 25+ years of optional
briefing on contested motions (versus adversary proceedings) rather than a careful
reading of the Court’s scheduling order. This is the first contested evidentiary

No. 24-8027 In re Biedka Page 19
hearing that counsel had scheduled before this Court, and will certainly not make
the same mistake again. Contrary to the assertions of the United State [sic] Trustee,
Debtors’ counsel has never considered or needed an opposing parties’ [sic] trial
brief to understand the facts and issues in a matter. This information was addressed
(or should have been) in discovery. The suggestion that a bankruptcy case should
be dismissed on a mere technicality is difficult to comprehend or justify where no
prejudice has resulted. Debtors should not be punished due to an unprecedented
and inadvertent by [sic] error by counsel.
Wherefore, for good cause shown, Debtors respectfully request leave to file their
Witness and Exibit [sic] List and Trial Brief, instanter, in this matter.
(Instanter Mot., Bankr. No. 24-10370, ECF No. 52 (emphasis in original).)
The Instanter Motion, in addition to being replete with typographical errors, failed to cite
the applicable rule or standard. Federal Rule of Bankruptcy Procedure 9006(b)(1)(B) (not the cited
Federal Rule of Civil Procedure 6(b)(2)1) governs the Instanter Motion and requires a showing of
excusable neglect.
The EHO made clear that the due date for the witness list was “[n]o later than one week
before the evidentiary hearing date.” (Evid. Hr’g Order at ¶ 3, Bankr. No. 24-10370, ECF No. 27.)
It also required exhibits to be exchanged among counsel “[n]o later than one week before the
evidentiary hearing date,” with exhibits to be delivered to chambers “at least three business days2
before the evidentiary hearing date.” (Id. at ¶¶ 4–5 (emphasis added).) The UST filed his Lists on
October 8, nine days before the scheduled hearing date. (See Bankr. No. 24-10370, ECF Nos. 43,
44.) On October 11, which was three business days before the evidentiary hearing, the UST timely
filed his Brief at 1:01 p.m. (Bankr. No. 24-10370, ECF No. 45.) At literally the eleventh hour
(i.e., 11:05 p.m.) on October 11, Mr. Van Ness filed Debtor’s Lists, three days late. (Bankr. No.
24-10370, ECF No. 46.)
At the end of the business day on October 15, 2024, when Debtors had still not filed their
Brief that had been due no later than October 11, the UST filed his Second MTD. (Mot. of the
1Rule 6(b)(2) would not have applied even if Rule 6 applied to contested matters.
2Thus, the witness list was due to be filed and the exhibits were to be exchanged between counsel no later
than October 10, and the exhibits were to be delivered to chambers no later than October 11 because a federal holiday
fell on Monday, October 14, three calendar days before the hearing date.

No. 24-8027 In re Biedka Page 20
U.S. Trustee to Dismiss Case or, in the Alternative, to Find in Favor of the U.S. Trustee on Issues
and Law and Fact, Bankr. No. 24-10370, ECF No. 27.) Notwithstanding the UST’s Second MTD,
Mr. Van Ness did not file a properly formatted Brief for another 27 hours. (See Trial Br. of
Debtors, Bankr. No. 24-10370, ECF No. 51.) Then, 42 minutes later, Mr. Van Ness filed the
Instanter Motion. (See Instanter Mot., Bankr. No. 24-10370, ECF No. 51.) These late-night filings
allowed only 4.5 business hours for consideration before the next day’s 1:30 p.m. evidentiary
hearing.
Apparently treating the Instanter Motion with the same degree of care with which it was
prepared, the Bankruptcy Court denied the Instanter Motion through a one-word order signed at
10:42 a.m. on the morning of the evidentiary hearing. (Order, Bankr. No. 24-10370, ECF No.
53.)3 Clearly, the Bankruptcy Court had discretion to deny the Instanter Motion,4 but it was error
not to provide a reason for doing so. Simply, the one-word denial order was insufficient. So, too,
was the Bankruptcy Court’s announcement at the beginning of the October 17 hearing: “So I did
see the Motion for Leave to File Instanter, filed by Debtors’ counsel. I denied that earlier this
morning. I think that denial is without prejudice to the alternative relief that was requested therein
to convert to Chapter 13.” (Tr. of Oct. 17, 2024 Hr’g, Bankr. No. 24-10370, ECF No. 705 at 3:16-
21.)
3Although the order was signed at 10:42 a.m., the clerk did not enter it until 12:53 p.m.
4Courts are not required but are “‘permitted, where appropriate, to accept late filings caused by inadvertence,
mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.’ Determining whether a
party’s ‘neglect’ is ‘excusable,’ is an equitable determination based on all relevant circumstances surrounding the
party’s omission.” In re Linqto Texas, LLC, No. 25-90186, 2026 WL 1083376, at *4 (Bankr. S.D. Tex. Apr. 21, 2026)
(quoting Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388, 395, 113 S. Ct. 1489 (1993)).
5Notably, Mr. Van Ness failed to comply with Federal Rule of Bankruptcy Procedure 8009(a)(4) and (b)(1)
when he failed to order the transcript of the October 17, 2024 hearing and designate it as part of the record on appeal.
See Fed. R. Bankr. P. 8009(a)(4) (requiring that the record on appeal include “any opinion, findings of fact and
conclusions of law relating to the issues on appeal, including transcripts of all oral rulings” in addition to “any
transcript ordered under [Rule 8009](b)”) and (b)(1) (requiring the appellant to either order the transcript or file with
the bankruptcy clerk a certificate stating that the appellant is not ordering a transcript). The UST designated the to-
be-ordered transcript as part of the record on appeal. (U.S. Trustee’s Designation of Add’l Items to be Included in the
Record on Appeal at p.2, Bankr. No. 24-10370, ECF No. 67.) Incredibly, notwithstanding that Mr. Van Ness’s failure
to comply with the rules and the Bankruptcy Court’s order is at the heart of this appeal, he opposed the UST’s request
for additional time to file his appellee’s brief on the basis that the UST had not timely ordered the transcript, citing
Rule 8009(b)(3) without acknowledging his own failure to comply with the rule. (Resp. in Opp. to Appellee’s Mot.
for Ext. of Time to file Response Br., BAP Case No. 24-8027, ECF No. 23.)

No. 24-8027 In re Biedka Page 21
Instead, the Bankruptcy Court easily could have explained that denial was based on Mr.
Van Ness’s failure to identify the correct rule or standard for allowing the late-filed Lists and Brief6
or on his lack of regard for the Bankruptcy Court’s directives based on his stated opinion that a
trial brief was “optional” and unnecessary. As recently explained by one bankruptcy court:
The “need for the neglect to be ‘excusable’ under Pioneer is to deter . . . parties
from freely ignoring court ordered deadlines in the hope of winning a permissive
reprieve under the procedural rules[.]” Neither ignorance, such as “failing to read
and follow the court’s local rule[,]” nor “a misconstruction of a procedural rule
constitutes excusable neglect.”
In re Sturgill, No. 24-32482, 2026 WL 797182, at *2 (Bankr. S.D. Ohio Mar. 19, 2026)
(citation modified) (quoting In re Sterling Rubber Prods. Co., 316 B.R. 485, 493, 491 (Bankr. S.D.
Ohio 2004), aff’d, 337 B.R. 729 (B.A.P. 6th Cir. 2006) (citation modified). On remand, the
Bankruptcy Court may simply apply the excusable neglect standard and rule with explanation on
the Instanter Motion.
Turning to the dismissal under Rule 41(b), the Panel discussed the “stringent” four-factor
test utilized by the Sixth Circuit “for cases where, as here, the dismissal hinges on the [debtors’]
attorney’s conduct rather than the [debtors’] own actions”:
“(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether
the adversary was prejudiced by the dismissed party’s conduct; (3) whether the
dismissed party was warned that failure to cooperate could lead to dismissal; and
(4) whether less drastic sanctions were imposed or considered before dismissal of
the action.” Mulbah v. Detroit Bd. Of Educ., 261 F.3d 586, 589 (6th Cir. 2001).
Lovingood v. Monroe Cnty., Tenn., No. 22-5022, 2022 WL 17069662, at *3 (6th Cir. Nov. 17,
2022). In addition to the failure of the Bankruptcy Court to give Debtors notice of the proposed
dismissal under Rule 41(b), the Bankruptcy Court did not address any alternate sanction except
6As recently stated by the Supreme Court:
Federal courts adhere to the principle of party presentation. That principle—the rule that points not
argued will not be considered—distinguishes our adversarial system of justice from an inquisitorial
one. Because courts are essentially passive instruments of government, we rely on the parties to
frame the issues for decision and decide only the questions presented.
Margolin v. Nat’l Ass’n of Immigr. Judges, 608 U.S. ___, 146 S. Ct. 1285, 1288 (2026) (citation modified).

No. 24-8027 In re Biedka Page 22
for the repeated reminder to Debtors that they could convert to Chapter 13. Thus, the Bankruptcy
Court’s dismissal under Rule 41(b) did not satisfy the fourth factor of the Sixth Circuit’s test for
dismissal when an attorney’s failure, and not the party’s failure, is at issue. As explained by the
Sixth Circuit, “although it is clear that the failure of the district court to impose or make explicit
its consideration of lesser sanctions is not fatal, . . . in the absence of such consideration, and in
the absence of contumacious conduct, an alternate sanction that would protect the integrity of
pretrial procedures should be utilized rather than dismissal with prejudice.” Harmon v. CSX
Transp., Inc., 110 F.3d 364, 367–68 (6th Cir. 1997).
After the Bankruptcy Court advised that it had denied the Instanter Motion without
prejudice so that it would not consider the trial brief, it repeatedly offered conversion from Chapter
7 to Chapter 13 as an option for Debtors. (See Tr. of Oct. 17, 2024 Hr’g, Bankr. No. 24-10370,
ECF No. 70 at 3:19–21; 5:18–6:4; 7:6–13; 10:6–15.) In fact, in its initial oral ruling on October
17, the Bankruptcy Court acknowledged Debtors’ alternative request in their trial brief that in lieu
of dismissal, they should be allowed to convert, and the Bankruptcy Court stated that Debtors still
would have the option to file a motion to reinstate the case and convert it to Chapter 13. (Id. at
13:10–17; 13:22–14:2.) Ultimately, however, because Mr. Van Ness “summarily ignored” the
EHO, which “is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded
by counsel without peril,” and in consideration of “the conduct of future litigants in this court and
to deter similar litigants from such misconduct in the future,” the Bankruptcy Court opted to
dismiss the case. (Id. at 12:8; 12:18–21; 13:18–21.)
Setting aside the Bankruptcy Court’s failure to provide any notice of its intent to apply
Rule 41(b) to dismiss the case, the Bankruptcy Court’s written opinion could have addressed Mr.
Van Ness’s failure to comply with the directives in the EHO in ways that might have been deemed
lesser sanctions than dismissal, including but not limited to requiring Mr. Van Ness to show cause
why he should not be required to disgorge fees or by holding the evidentiary hearing as scheduled
but not allowing Debtors to present their case in chief by disallowing their presentation of
witnesses or exhibits.
The Bankruptcy Court also could have addressed directly Mr. Van Ness’s blatant
condescension and defiance concerning the Court and its directives. Mr. Van Ness took the stance

No. 24-8027 In re Biedka Page 23
before the Bankruptcy Court and this Panel that the directive to file a pretrial brief was unnecessary
and was essentially busywork that he had never been required to complete in his twenty-plus years
of experience as an attorney before the Bankruptcy Court. He stated: “[W]hat, I have to lay out
my entire trial strategy in a trial brief? That doesn’t even make any sense. Nobody ever does
that.” (Tr. of Oct. 17, 2024 Hr’g, Bankr. No. 24-10370, ECF No. 70 at 9:5–7.)
Yet, when the Bankruptcy Court stated that the pretrial brief was “not a frivolous piece of
paper, idly entered, which can be cavalierly disregarded by counsel without peril,” and Debtors’
case was being dismissed in consideration of “the conduct of future litigants in this court and to
deter similar litigants from such misconduct in the future,” Mr. Van Ness took offense with the
Bankruptcy Court’s use of the word “misconduct” rather than “mistake,” arguing that his conduct
was not intentional. (Id. at 14:13–17.) His own words, however, made clear that his failure to file
a trial brief was not a mistake or error but, instead, was a conscious decision not to comply with
directives from the Bankruptcy Court that he deemed pointless:
A trial brief in an evidentiary hearing is – it’s an onerous task and a burden for
Debtors and their counsel to perform, and it’s because we’ve got people who are
filing bankruptcy because of need, because of finances, that can’t afford to pay the
costs. If you could only see how much money the government has spent. Where’s
the FedEx box, Liz? Forty or $50 on that, another $50 on exhibits, a paralegal,
expedited transcripts on depositions. You’re basically pricing us out of the ball
game, Your Honor.
I didn’t make -- I made a mistake as far as the timing, but it wasn’t intentional. The
Court knows there’s been a lot of new rules put in, one of which is this three-day
rule. Sometimes it’s three days, sometimes it’s not. There’s parts of the scheduling
brief. But I made the mistake as far as the trial brief’s concerned. I guess I made
it with regard to the witness and exhibit list. But I don’t even understand the
insinuation that there’s prejudice. Never in my career has anyone relied on a trial
brief to determine what the issues are in a case. I understand the Court may, and I
apologize if that was something that prejudiced the Court, but it wasn’t an intention.
This is something that’s been amongst counsel for months. We’ve been talking
about this. It’s a pretty simple issue, very narrow. Everything’s been laid out.
There was discovery. The U.S. Trustee did not ask for a single -- did not -- received
every single item they asked for timely. They took a deposition as requested. They
receive it. There’s no surprises here. . . . We do basically set the law. We don’t
put every single element, every single fact we expect to hear. I mean, I’d be writing
a brief about things I don’t even know are going to occur. I don’t know what the
testimony for certain will be today. But the reality that a trial brief has prejudiced

No. 24-8027 In re Biedka Page 24
the United States Trustee, they’ve been through thousands of these cases. They’re
hardly prejudiced. They know the law better than anyone. Half the time they’ve
written it.
So I don’t believe that it’s fair to say that there’s been prejudice, and I also don’t
think it’s fair to deny the Debtors their opportunity to present their case today. The
U.S. Trustee has the burden, and at this point, I understand what the Court is saying,
but the trial brief is not evidence. It’s not going to be admitted into testimony. The
U.S. Trustee has seen what we’ve said. Regardless of whether it’s on the record or
not, it doesn’t matter.
(Id. at 7:23–9:25.)
At oral argument before this Panel, Mr. Van Ness doubled down on his disregard for the
Bankruptcy Court’s orders and, in particular, criticized the judge: “I’m not naïve here . . . . I’ve
been practicing law for 35 years. I believe this is a young judge who tried to make her mark and
let everyone know that she was in charge of her courtroom.”7 Further, he acknowledged to this
Panel that he would not have filed a Brief at all had the UST not filed a Second MTD. Indeed, it
can be inferred that he eventually filed the initial, improperly formatted version of the Brief at 8:18
p.m. on the eve of the evidentiary hearing only after the UST filed the parties’ Stipulations upon
Motion of the United States Trustee to Dismiss Case for Abuse Under 11 U.S.C. § 707(b)(1) and
(3) at 6:25 p.m. that same evening. (Bankr. No. 24-10370, ECF No. 49). Mr. Van Ness further
claimed that the Bankruptcy Court’s reference in the Dismissal Order to six other cases with
contested matters in which scheduling orders with the same deadlines had been entered was
factually inaccurate because those cases ultimately did not go to hearing, ignoring the fact that the
Bankruptcy Court had entered pretrial orders directing the parties to file pretrial documents so that
the scheduling order in this case was not “the first contested evidentiary hearing that [he] had
scheduled before this Court.” (Instanter Motion at 1, Bankr. No. 24-10370, ECF No. 52.)
“Litigants are held accountable for the acts and omissions of their chosen counsel.” Couch
v. Panther Petroleum, LLC (In re Couch), 704 F. App’x 569, 575 (6th Cir. 2017) (citation
modified) (quoting Pioneer, 507 U.S. at 396–97); see also Kellum v. Comm’r of Social Sec., 295
F. App’x 47, 50 (6th Cir. 2008) (“[T]he actions of a privately retained attorney are imputed to the
7The “young judge” referred to by Mr. Van Ness was appointed October 2, 2023.

No. 24-8027 In re Biedka Page 25
client.”); Allen v. Murph, 194 F.3d 722, 723–24 (6th Cir. 1999) (finding that “an attorney’s
inexcusable neglect is normally attributed to his client” when the attorney was careless and did not
seek “an extension of time in order to preserve the clients’ rights”). However, as noted in the
Panel’s opinion, the Sixth Circuit has been reticent to dismiss a case based solely on the failure of
a litigant’s counsel. Thus, remand to the Bankruptcy Court for an explanation and analysis
consistent with the Panel’s opinion is appropriate.