In re: ESTRELLA AND JAMES KINCAID v. SUSAN K. SMITH, Trustee

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ESTRELLA AND JAMES
KINCAID,
Debtors.
ESTRELLA KINCAID; JAMES
KINCAID,
Appellants,
v.
SUSAN K. SMITH, Trustee,
Appellee.
No. 09-60047
BAP No. 09-1070-PaJuMo
MEMORANDUM*
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Jury, and Montali, Bankruptcy Judges, Presiding
Submitted November 21, 2011**
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
FILED
NOV 29 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Estrella and James Kincaid appeal pro se from the Bankruptcy Appellate
Panel’s (“BAP”) orders dismissing their appeals for lack of prosecution and
denying their motion for reconsideration. We have jurisdiction under 28 U.S.C.
§ 158(d). We review for an abuse of discretion. Greco v. Stubenberg, 859 F.2d
1401, 1404 (9th Cir. 1988) (dismissal for lack of prosecution); Nat’l Bank of Long
Beach v. Donovan (In re Donovan), 871 F.2d 807, 808 (9th Cir. 1989) (per curiam)
(motion for reconsideration). We affirm.
The BAP did not abuse its discretion by dismissing the Kincaids’ appeals
after granting an extension of time to file the opening brief, stating that no further
extensions would be granted, and warning that noncompliance would result in
dismissal. See Greco, 859 F.2d at 1404 (the district court did not abuse its
discretion by dismissing an appeal from the bankruptcy court where the appellant
failed to comply with court deadlines after a warning that failure to comply would
result in dismissal); see also In re Donovan, 871 F.2d at 808 (the same standard
governs dismissals for lack of prosecution by the district court and the BAP).
The BAP did not abuse its discretion by denying the Kincaids’ motion for
reconsideration because the Kincaids failed to show excusable neglect or any other
ground for relief. See Fed. R. Civ. P. 60(b) (providing grounds for relief); In re
Donovan, 871 F.2d at 808 (a BAP order denying a motion to reconsider a dismissal

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for lack of prosecution “is appropriately analogized to a Rule 60(b)
determination”).
The Kincaids’ remaining contentions are unavailing.
AFFIRMED.

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