EFTA01363330.pdf

Page 11 2012 U.S. Dist. LEXIS 93633, * Judgment. isithout seeking leave of court. (4) North Shore has never complied with the discovery deadlines. North Shore apparently views court-imposed deadlines as suggestions rather than as Orders compelling timely performance. (May 26, 2010, Bankr. Summ. J. 7, ECF No. 1, Ex. 3). North Shore has a sufficient history of dilatoriness in this matter such that the third Poulis factor weighs in favor of dismissal. See, e.g., Buccolo, 308 Fed. Appx. 574, at *575 (affirming district court's dismissal of the bankruptcy appeal for failure prosecute mks where appellant "did not comply with the Bankruptcy Rules for filing a brief within 15 days of the docketing of his appeal... or for providing for the transcript of the Bankruptcy Court proceedings..." noting that [HN8] "[ejither of these violations is grounds for dismissal under Bankruptcy Rule 8001"). 4. Willfulness and Sae Faith [HN9) The fourth Poulis factor considers whether the conduct of the appellant or of the appellant's attorney was willful or in bad faith. 747 F.2d at 868. North Shore failed to comply with the Court's original scheduling order, failed to move for an extension of time within which to file its brief until more than six months after the original filing deadline, and has failed to comply with the Court's new scheduling order. In explaining its failure to follow the Court's original scheduling order, North Shore referred generally to the hustle and bustle of the bankruptcy proceedings. North Shore also pointed to the size of its legal team and financial resources. North Shore's explanations for its delays are unpersuasive. By failing to file an appellant's brief or timely move for an extension of time within which to do so, North Shore has demonstrated a willful ["14] disregard for the Court's scheduling orders and for the appellate process in general. See, e.g., In re Toys Inc., 263 Fed. Appx. at 238 (finding that "the record provides a basis to conclude that [the appellant's] conduct showed willful disregard for the appellate process" because "[h]e ignored the deadlines issued by the District Court"). The fourth Poulis factor therefore weighs in favor of dismissal. 5. Effes-beefless of Alternative Sanctions [HN10] The fifth Poulis factor assesses the effectiveness of sanctions other than dismissal. 747 F.2d at 868. North Shore has not suggested any such sanctions. A possible alternative to dismissal would be to grant North Shore an extension of time within which to file its appellant's brief. However, the Court has already granted such an extension. Granting any further extension would reward North Shore's blatant failure to comply with this Court's orders by allowing it to file an opening brief more than 22 months after the commencement of its appeal. The Court could also impose a fine against North Shore's counsel as a penalty for its failure to comply with the scheduling orders in this matter. See Poulis, 747 F.2d at 869. Alternatively, the Court could ["15] consider the propriety of ordering North Shore to pay Carroll's attorney's fees associated with filing the instant motion. See id. However, North Shore has made it clear that its financial resources available to prosecute this matter are very limited. Thus, it is unlikely that North Shore will have the ability to comply with a For internal use only CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0053289 CONFIDENTIAL SDNY_GM_00199473 EFTA01363330