EFTA01363329.pdf

Page 9 2012 U.S. Dist. LEXIS 93633, * Fed. Appx. 93, at *97 (quoting In re Beverly Mfg. Corp., 778 F.2d 666, 667 (11th Cir. 1985)); see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (upholding NI dismissal of bankruptcy appeal for failure to follow Bankruptcy Rules or timely file appeal brief where plaintiffs provided no explanation or excuse for noncompliance); In re Champion, 895 F.2d 490, 492 (8th Cir. 1990) (finding no abuse of discretion in dismissing appeal where appellant had not filed designation of record or statement of issues required by Bankruptcy Rule 8006); In re Tampa Chain Co., 835 F.2d 54, 56 (2d Cir. 1987) (affirming dismissal of bankruptcy appeal for failure to file a brief for seven months after the due date or provide any explanation for the failure, even after the court's inquiry into delinquency). Given that backdrop, the Court will now assess whether the Poulis factors favor or disfavor dismissal. I Extent of North Snores Personal Responsibility The first Poulis factor assesses the extent of the appellant's personal responsibility. 747 F.2d at 868. North Shore has suggested that its counsel is responsible for its failure to follow the Court's scheduling order. North Shore averred that, Defendant, Chapter 7 Debtor Jeffrey J. Prosser (Case No. 06-3C009), and his family. including Dawn Prosser. the owner of Nodh Shore, are overwrought and under (Ng assault with numerous and often duplicate suits replete with continuous motions and actions... (Appellant's Mem. Supp. Mot. Leave to File Untimely Resp. 2, ECF No. 4). North Shore also contended that it is "without the financial resources to employ an adequate number of counsel that have the time availability to meet the relentless and continuous assault and actions..." Id. North Shore went on to aver that it has "mounted a defense with far too small group [sic] of counsel and others which have committed what time they can and what effort they can, when possible, for little, or in most cases, for no compensation." Id. Indeed, North Shore referred generally to the commotion of the bankruptcy proceedings in explaining its failure to comply with the original scheduling order in this matter. North Shore also pointed to the limited size of its legal team and financial resources. Because it seems that North Shore's counsel was at least somewhat responsible for North Shore's failure to comply with the Court's original scheduling order, the first Poulis factor does not necessarily weigh in favor of dismissal. However, [HN5] North Shore's "lack of responsibility for [its] counsel's dilatory conduct r91 is not dispositive, because a client cannot always avoid the consequences of the acts or omissions of its counsel." See Poulis, 747 F.2d at 868; see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)("[E]ven assuming that WCI does not bear responsibility for its counsel's conduct, consideration of the remaining factors still compels affirming the District Court's decision to sanction WCI and dismiss the breach of contract claim."); cf. Lee v. Sunrise Senior Living, 455 Fed. Appx. 199, 201-202 (3d Cir. 2011) (finding that the pro se plaintiff was "fully responsible for her conduct.") The Court also notes that North Shore has not offered any explanation for its failure to comply with the March 28, 2012, scheduling order. For internal use only CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0053287 CONFIDENTIAL SDNY_GM_00199471 EFTA01363329