Unreported / Non-Citable
Background
IMH Dallas Arioso, LLC, the debtor in Bankruptcy Case No. 25-05061-JBM11, filed a notice of appeal on April 28, 2026, under 28 U.S.C. § 158(c)(1), seeking review in the U.S. District Court for the Southern District of California of a judgment of the Bankruptcy Court. The district court set a briefing schedule on the appeal on May 12, 2026. On June 24, 2026, however, the Bankruptcy Court filed a Notice of Unperfected Appeal, indicating that the appellant had failed to comply with Federal Rule of Bankruptcy Procedure 8009.
Rule 8009 requires an appellant to designate the items for the record, state the issues on appeal, and either order a transcript or certify that none will be ordered. On June 30, 2026, appellee RREF IV – D Claremont Drive, LLC moved to dismiss the appeal as moot, arguing that the subject property had been sold at a foreclosure sale. As of October 13, 2026, the appellant had not opposed or otherwise responded to that motion. The district court did not decide the mootness argument or review the underlying bankruptcy judgment; it ruled instead on the appellant's procedural defaults.
The Court’s Holding
Judge Ruth Bermudez Montenegro granted the motion to dismiss because the appellant failed to file an opposition. The court relied on Southern District of California Civil Local Rule 7.1(f)(3)(c), under which a party's failure to file required opposing papers may constitute consent to the requested ruling, and cited Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995), for the proposition that dismissal may be affirmed for failure to timely file opposition papers. The court nevertheless proceeded to weigh the factors required before dismissing an action.
Applying Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986), the court considered the public's interest in expeditious resolution, the court's need to manage its docket, the risk of prejudice, the policy favoring merits dispositions, and the availability of less drastic sanctions. It recognized that the first and fourth factors cut in opposite directions. Docket management favored dismissal, and prejudice could be presumed because the appellant failed, without explanation, both to perfect the appeal and to respond to the motion. Although the court had not expressly warned the appellant that nonresponse could lead to dismissal, the district's local rules contained that warning.
Weighing the required factors, the court found dismissal without prejudice appropriate, citing authority recognizing that disposition as a less drastic sanction than dismissal with prejudice. It accordingly granted the Motion to Dismiss Appeal (Doc. 6), denied as moot the ex parte application in Doc. 7 to extend the deadline for the respondent's brief, dismissed the appeal without prejudice, and directed the Clerk of Court to close the case. The ruling did not adjudicate the validity of the foreclosure sale or the merits of the bankruptcy appeal.
Key Takeaways
- A bankruptcy appellant must comply with Rule 8009's record-designation, issue-statement, and transcript-related requirements to perfect an appeal.
- Failure to oppose a motion may constitute consent to the requested ruling under the Southern District of California's Civil Local Rule 7.1(f)(3)(c).
- The court applied the Henderson v. Duncan dismissal factors rather than treating the local-rule violation as automatically ending the case.
- Unexplained failures both to perfect the appeal and to respond to the dismissal motion supported presumed prejudice and dismissal.
- The appeal was dismissed without prejudice as a less drastic sanction, the requested extension of the respondent's brief deadline was denied as moot, and the case was closed.
Why It Matters
The order illustrates how procedural defaults can independently defeat a bankruptcy appeal before the district court reaches the underlying bankruptcy issues. Although the appellee framed its motion around mootness following a foreclosure sale, the court's stated basis was the appellant's failure to perfect the appeal and to oppose dismissal, followed by the required dismissal-factor analysis.
The without-prejudice disposition also matters: the court expressly chose a less drastic sanction than dismissal with prejudice. Its closure of the district-court appeal should therefore not be described as a merits ruling on the bankruptcy judgment, the foreclosure sale, or the appellee's mootness theory.