Slavinsky v. Educational Credit Management Corporation

OCR transcription for search; preserved printed pages are authoritative

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IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MARYLAND, NORTHERN DIVISION

*
BARBARA ANNE SLAVINSKY,
Plaintiff,
* CIVIL NO.: WDQ-06-1737

Vv.

EDUCATIONAL CREDIT

MANAGEMENT CORPORATION, *
Defendants. *
‘* * * * * * * * * * * * *

MEMORANDUM OPINION
Barbara A. Slavinsky, a pro se debtor, has appealed the
United States Bankruptcy Court’s June 21, 2006 dismissal of her
complaint to determine the dischargability of her student loan
debt. Pending is a motion to dismiss the appeal by Educational
Credit Management Corporation (“ECMC”), the holder of her loans.
In addition, ECMC has moved to strike Slavinsky’s “Appeal for
Dismissal of Complaint.” For the reasons discussed below, the
motion to dismiss will be granted, and the motion to strike will

be denied as moot.

I. Background

Slavinsky initiated an Adversary Proceeding in the United
States Bankruptcy Court seeking a discharge of student loans held
by ECMC. On June 12, 2006 the Bankruptcy Court held a trial and

held that Slavinsky had failed to show, by a preponderance of the

AUTHENTICATED -“, 7
U.S. GOVERNMENT Lo
INFORMATION
GPO

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evidence, that requiring her to repay her loans would create an
undue hardship. Appellee’s Brief, Appendix at 209 (Bankruptcy
Court Order). A discharge was not granted.

On June 22, 2006, Slavinsky moved for leave to appeal the
Bankruptcy Court’s order. ECMC opposed and moved to strike
Slavinsky’s appeal, arguing that Slavinsky failed to file a
notice of appeal as required by Rule 8001 of the Federal Rules of
Bankruptcy Procedure (“FRBP”). On July 12, 2006 and July 25,
2006, Slavinsky moved for extensions of time to file her notice
of appeal. On July 26, 2006, this Court granted her motion for
leave to appeal. On August 10, 2006, Slavinsky filed an “Appeal
for Dismissal of Complaint,” which may be considered to be her
FRBP 8009 brief. On August 23, 2006, ECMC filed the pending

motion to dismiss.

II. Analysis

ECMC has moved to dismiss the appeal arguing that Slavinsky
failed to comply with FRBP 8006. Slavinsky has failed to file a
response despite receiving a Rule 12/56 letter explaining the
possible outcome of ECMC’s motion to dismiss. (Paper No. 15).

Rule 8006 requires Slavinsky to “file with the clerk and
serve on the appellee a designation of the items to be included
in the record on appeal and a statement of the issues to be
presented” within 10 days of the later of: 1) filing the notice

of appeal under Rule 8001(a); 2) entry of an order granting leave

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to appeal; or 3) entry of an order disposing of the last timely
motion filed under Rule 8002(b). Fed. R.Bankr. P. 8006.

Under Rule 8006, the 10-day time period began when the Court
filed its July 26, 2006 Memorandum Opinion and accompanying Order
granting Slavinsky’s motion for leave to appeal. (Paper Nos. 9,
10). Slavinsky has not yet filed her designation of record and
thus has failed to comply with Rule 8006.

The District Court may, upon motion of the appellee, dismiss
the appeal for non-compliance with Rule 8006. Local Rule 404.2.
In determining whether to dismiss an appeal for a Rule 8006
violation, a district court should consider the following
actions:

(1) make a finding of bad faith or negligence; (2) give the

appellant notice or an opportunity to explain the delay; (3)

consider whether the delay had any possible prejudicial

effect on the other parties; or (4) indicate that it
considered the impact of the sanction and available
alternatives.
In re SPR Corp., 45 F.3d 70, 72, 74 (4th Cir. 1995) (citing In re
Serra Builders, Inc., 970 F.2d 1309, 1311 (4th Cir.1992)). The
Fourth Circuit has held that a proper application of the factors
“normally require[s] a district court to consider and balance all
relevant factors.” Id. at 74.

On August 23, 2006, ECMC moved to dismiss for failure to
comply with Rule 8006. Despite the fact that Slavinsky is pro
se, and thus a clear understanding of Bankruptcy Procedure should

not be imputed to her, the filing of the motion served as notice

3

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that Rule 8006 imposed a duty on her. Despite this notice,
Slavinksy did not file a tardy designation of record nor did she
move for an extension of the 10-day time limit so that she could
designate the record,

On December 15, 2006 the Court, by letter, requested that
Slavinsky and ECMC submit memoranda discussing and applying the
Fourth Circuit’s decisions in Serra and SPR to the facts of
Slavinsky’s case. The Court even set forth the four factors that
the cases discuss. This letter served as further notice of the
importance of Rule 8006.

The memoranda were to have been submitted by December 29,
2006 and while ECMC promptly responded to the request a week
ahead of the deadline, Slavinsky failed to respond. Instead, on
January 8, 2006, more than 10 days after the due date, Slavinsky
moved for an extension of time to file the requested memorandum.
This motion was granted and time to reply was extended to January
19, 2006. Slavinsky has failed to comply with this deadline as
well. Now, more than five months after Slavinsky should have
filed her designation of the record, she has still failed to do
SO.

Moreover, although Slavinksy has had ample notice of the
Rule 8006 requirements and has had many months to explain the
continuing delay, she has failed to submit the required filing,

explain the delay, or respond to ECMC’s motion. Although pro se

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litigants are ordinarily afforded some leeway, that Slavinsky is
pro se’ does not obviate her duty to attempt to follow the
Court’s procedures and requests.

ECMC has established that Slavinsky’s continuing failure to
comply with the rules is unreasonable delay that prejudices ECMC.
Appellee’s Mem. in Supp. of Mot. to Dismiss Appeal at 4. This
delay creates additional legal expenses for ECMC and places some
uncertainty on its operations as it waits for judicial resolution
of the claim that the Bankruptcy Court has dismissed on its
merits.

This Court recognizes “that the sanction of dismissal for
failure to comply with . . . Rule 8006, [is] a harsh sanction
which a district court must not impose lightly.” Serra, 970 F.2d
at 1311. However, in light of Slavinsky’s continuing failure to
pursue her appeal, as evidenced by her failure to respond to
ECMC’s motion and this Court’s letter, the Court finds that

dismissal is appropriate.

1 Slavinksy has earned a Ph.D and taught at, inter alia,
Boston College, The University of Texas at Austin, and Stanford
University. Slavinsky’s “Appeal for Dismissal of Complaint” at
10-11 (Paper No. 11).

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TII. Conclusion
For the reasons discussed above, ECMC’s motion to dismiss
for failure to comply with Rule 8006 will be granted. As a

result, all other pending motions will be denied as moot.

February 9, 2007 /s/

Date William D. Quarles, Jr.
United States District Judge