Pro se appellant Elliotte Coleman appeals the Superior Court’s orders

(1) granting appellee Carrington Mortgage Services’ motion for a prefiling injunction to require Mr. Coleman to seek preapproval before filing more pleadings in this matter

and

(2) denying Mr. Coleman’s motion to lift the prefiling injunction.

For the reasons stated below, we vacate the latter of these two orders and remand for further proceedings.

* Associate Judge AliKhan was originally assigned to this case. Following Judge AliKhan’s appointment to the U.S. District Court for the District of Columbia, effective December 12, 2023, Judge McLeese has been assigned to take her place on the panel.

I.

This case arises from a foreclosure battle between Carrington2 and Carrington’s debtor, Mr. Coleman.3

After the trial court granted Carrington’s motion for summary judgment and ordered foreclosure on Mr. Coleman’s property, Carrington “sold” the property.

In June 2019, the trial court ratified the sale, deemed it final, and closed the case.

Despite the sale of his property and the closure of the case, Mr. Coleman continued to fight his foreclosure.

2 Carrington’s predecessor-in-interest, Bank of America, was the initial creditor in this matter. Carrington was substituted as plaintiff in 2018 after it gained ownership over the judicial foreclosure action.

3 Carrington opposes Mr. Coleman’s inclusion in his appendix of several documents that are not part of the record on appeal. Mr. Coleman did not file a motion to supplement the record, D.C. App. R. 10(e), and we do not consider those portions of the appendix, Flocco v. State Farm Mut. Auto. Ins. Co., 752 A.2d 147, 152 n.7 (D.C. 2000) (noting that facts outside the record are ordinarily not considered absent a motion to supplement the record).

Over the next fourteen months he filed five substantive motions requesting that the court vacate, alter, or amend its

judgment or that the trial judge recuse himself from the case.

Mr. Coleman also sought relief in bankruptcy court

(asking that it stay the foreclosure auction of his home),

in the United States District Court for the Western District of North Carolina

(seeking damages for alleged fraud and statutory violations),

and in this court, where he appealed multiple trial court orders, including the denial of his motion to amend or alter the grant of summary judgment and the ratification of foreclosure sale.

Neither the bankruptcy case nor the North Carolina case was successful.

But the appeal before this court was: we vacated the trial court’s judgment in favor of Carrington and remanded for further proceedings, determining that Mr. Coleman had “presented sufficient evidence to establish a genuine issue of material fact as to whether [Bank of America] and/or its successor, Carrington, were entitled to enforce the note and deed of trust.”

Coleman v. Carrington Mortg. Servs., LLC, Nos. 19-CV-0970, 20-CV-0572, Mem. Op. & J. at 3 (D.C. Aug. 24, 2021).

While Mr. Coleman’s appeal to this court was pending, Carrington moved for a prefiling injunction, arguing that Mr. Coleman had “demonstrated a continuous pattern of vexatious litigation in an attempt to hinder and delay Carrington from enforcing numerous court orders.”

Mr. Coleman did not file an opposition.

In granting Carrington’s motion, the trial court applied the Second Circuit’s five-factor test for determining whether a prefiling injunction is appropriate as set forth in

Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986).4

The court made the following findings:

(1) Mr. Coleman appeared to have “abuse[d] the judicial process by bombarding the Court with frivolous and meritless filings”;5

(2) Mr. Coleman had filed motions making “the same arguments . . . over and over,” which appeared to be nothing more “than a delay tactic and bad faith conduct”;

(3) Mr. Coleman was not represented by counsel, “but his ability to navigate the courts in multiple jurisdictions and play legal checkers through his motions practice indicates he is an

4 The five factors laid out by the Second Circuit are:

(1) the litigant’s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits;

(2) the litigant’s motive in pursuing the litigation, . . .

(3) whether the litigant is represented by counsel;

(4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel;

and

(5) whether other sanctions would be adequate to protect the courts and other parties.

Safir, 792 F.2d at 24.

5 It is not entirely clear which of Mr. Coleman’s filings the trial court found to be “frivolous and meritless.”

In the order’s “Background” section, the court mentioned the five motions that Mr. Coleman filed following the court’s June 17, 2019, grant of Carrington’s Motion to Ratify Foreclosure Sale.

But when analyzing the Safir factors, the trial court quoted Carrington’s statement that Mr. Coleman had “filed over eight motions since judgment was obtained”—perhaps including motions filed in the time period between the grant of summary judgment and the ratification of the foreclosure sale.

This unexplained discrepancy is not significant to our decision.

intelligent individual and fully aware of the implications and consequences of his actions”;

(4) Mr. Coleman’s filings had caused Carrington and the trial court to “unnecessarily expend[]” resources;

and

(5) a prefiling injunction was the “ideal sanction” because there was “essentially nothing left to address in th[e] case and should Coleman have a legitimate issue to bring before the Court, he need only ask the Court’s leave to do so.”

Accordingly, the trial court barred Mr. Coleman from filing “pleadings in this case without first obtaining” the court’s permission.

Shortly after a panel of this court ruled in Mr. Coleman’s favor and remanded the case, Mr. Coleman moved to lift the prefiling injunction.

He contended that because the case had been remanded for further proceedings, it was “just and proper” for the trial court to allow him to file pleadings without first obtaining approval from the court.

In a written order, the trial court restated verbatim its previous analysis under Safir and—stating that

“[n]othing ha[d] changed from the date of this [court’s] Order granting the prefiling injunction”—concluded that “the injunction must remain.”

Mr. Coleman appealed

(1) the trial court’s prefiling injunction order

and

(2) the trial court’s order denying Mr. Coleman’s request to lift the injunction.6

6 Although this is an interlocutory appeal and we generally lack jurisdiction over such appeals, D.C. Code § 11-721(a)(2)(A) gives this court jurisdiction to review interlocutory orders granting injunctions, like the prefiling injunction at issue here.

To the extent Mr. Coleman raises arguments related to other orders or issues not before us on appeal, we decline to address them.

See Akassy v. William Penn Apartments Ltd. P’ship, 891 A.2d 291, 302 (D.C. 2006).

II.

The trial court “has the discretion and the power to restrict a litigant who abuses the judicial system,” and unless the court has abused that discretion, we will defer to its decision to impose a prefiling injunction.

Ibrahim v. District of Columbia, 755 A.2d 392, 394 (D.C. 2000).

Such deference is straightforward when the court has made substantive findings based on a full record.

See In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988) (per curiam)

(“In keeping with the exigent nature of injunctions and the caution required in issuing injunctions, the district court should endeavor to create an adequate record for review.”).

We will not defer to the trial court, however, where the court relies on incorrect legal standards, fails to provide a valid reason for its actions, or states reasons that “do not rest upon a specific factual predicate.”

In re D.B., 879 A.2d 682, 691 (D.C. 2005) (quoting Johnson v. United States, 398 A.2d 354, 364 (D.C. 1979)).

In Ibrahim, the trial court did not abuse its discretion in issuing a prefiling injunction where the court detailed the appellant’s twenty-five claims in the Superior  Court, twenty-two petitions and motions in the U.S. Supreme Court, and thirty-three complaints in the U.S. District Court.

755 A.2d at 392-94.

Ibrahim’s filings were so burdensome that three other courts had already taken note:

the Supreme Court had deemed him “a ‘prolific filer’ . . . in its decision withdrawing [his] in forma pauperis privilege”;

the U.S. District Court for the District of Columbia had enjoined him from making future filings;

and the U.S. Court of Appeals for the District of Columbia Circuit had lamented his “‘profuse and meritless’ complaints.”

Id. at 393-94.

In affirming a prefiling injunction in Ibrahim, we distinguished Ibrahim’s abuse of the court system from the litigious but less-than-harassing behavior of the appellants in Powell.

Id. at 393 (citing In re Powell, 851 F.2d at 434).

In Powell, the court reversed two prefiling injunctions imposed upon two separate litigants.

851 F.2d at 434.

Although one of the pro se litigants had initiated thirteen separate lawsuits in the trial court, the court concluded that he had not been shown to have “a ‘fanatical desire’ to ‘flood’ the court with ‘meritless, fanciful claims.’”

Id. at 432 (quoting Urban v. United Nations, 768 F.2d 1497, 1499-500 (D.C. Cir. 1985) (per curiam)).

The court reversed the injunction against the other pro se litigant in part because at least some of his sixteen separate filings over a twenty-eight month period had “limited success . . . which suggests that there is some merit to his claims.”

Id. at 433.

Mr. Coleman’s actions in this case look less like those of the litigant in Ibrahim and more like those of the litigants in Powell.

Unlike Ibrahim, the record here indicates that Mr. Coleman filed only one lawsuit in the Superior Court, not twenty-five.

See Ibrahim, at 392-93.

In fact, regardless of how the court counts Mr. Coleman’s post-judgment motions, see supra note 5, they remain only a fraction of the thirteen separate lawsuits or sixteen separate filings that the court found insufficiently burdensome to warrant a prefiling injunction in Powell.

See In re Powell, at 432-33.

And unlike Ibrahim, the record here does not show that any other court has imposed a sanction on Mr. Coleman.

This is not to say that a prefiling injunction is warranted only where a litigant has proven so universally burdensome that sister jurisdictions have imposed sanctions of their own.

On the other hand, “mere litigiousness” does not, on its own, “support the issuance of an injunction.”

Ibrahim, 755 A.2d at 393 (quoting In re Powell, 851 F.2d at 434).

Here, like one of the litigants in Powell, Mr. Coleman has found some recent success on one of the very motions that the trial court seems to have found “frivolous and meritless.”

For example, in our 2021 decision in this case, we reversed the trial court’s denial of Mr. Coleman’s motion seeking to amend the court’s orders granting summary judgment, ratifying the foreclosure sale, and denying Mr. Coleman’s motions to alter or amend those earlier orders after concluding that “Mr. Coleman presented sufficient evidence to establish a genuine issue of material fact as to whether [Bank of America] and/or its successor, Carrington, were entitled to enforce the note and deed of trust.”

Coleman, Nos. 19-CV-0970, 20-CV-0572 at 3.

And although this court formally addressed only one of Mr. Coleman’s trial court motions, our decision seems to give credence to arguments that Mr. Coleman raised in at least three other motions filed in the trial court.

In denying Mr. Coleman’s request to lift the prefiling injunction, the trial court failed to acknowledge Mr. Coleman’s success or consider whether that success should affect the court’s determination of whether his filings were “frivolous,” “meritless,” or in “bad faith.”

Instead, the court relied exclusively on the Safir test.7

A more accurate and specific factual predicate than what the trial court provided is required before the court deprives a litigant—especially a pro se litigant—of “such a vital constitutional right as access to the courts.”

In re Powell, 851 F.2d at 431.

7 The factors from the Safir test that the trial court applied may be relevant, but this court has not adopted (or even cited) Safir’s multi-factor test when evaluating these injunctions.

To the extent the Superior Court judges view the Safir test as governing,

see, e.g., Whitehead v. Wickham, No. 05-CA-3346, 2005 WL 2874975, at *3 (D.C. Super. Ct. Sept. 6, 2005)

(stating that the court “must consider” the Safir factors),

we have never said that is the law.

III.

A prefiling injunction “is an extreme sanction and should be imposed in only the most egregious cases.”

Id. at 434.

Where Mr. Coleman’s filings were not exceptionally numerous, not the focus of other courts’ efforts to enjoin more such filings, and not wholly unsuccessful, the trial court’s denial of Mr. Coleman’s motion to lift the injunction was an abuse of discretion.8

For the foregoing reasons, we vacate that order and remand for further proceedings.

So ordered.

8 Carrington argues that Mr. Coleman’s appeal of the initial order granting the prefiling injunction is untimely because Mr. Coleman filed it well after the thirty-day limit under D.C. App. R. 4(a)(1).

We need not address timeliness here, however, because our reversal of the trial court’s denial of Mr. Coleman’s timely motion to lift the prefiling injunction makes the matter moot.

MEMORANDUM OPINION

Elliotte Patrick Coleman, proceeding pro se, appeals from an order of the bankruptcy court granting summary judgment to Countrywide Home Loans, Inc. Mr. Coleman filed a notice of appeal with the U.S. District Court on July 1, 2009.

Mr. Coleman thereafter moved for recusal of the undersigned, which the Court denied, and Mr. Coleman now intends to appeal to the Supreme Court after the D.C. Circuit denied his appeal.

To date, Mr. Coleman has yet to file a brief or any papers which speak to the merits of the instant matter.

Countrywide Home Loans, Inc. (“Countrywide”) has twice moved to dismiss the case for lack of jurisdiction and for failure to timely file a brief.

Upon consideration of the motions and the entire record, the Court will grant the motion to dismiss.

I.     FACTS

On May 11, 2009, the United States Bankruptcy Court for the District of Columbia granted summary judgment to Countrywide in a proceeding below.

See Coleman v. Countrywide Home Loans, Inc. (In re Coleman), Adv. Pro. No. 07-10022 (Bankr. D.D.C. May 11, 2009) [Dkt. # 54].

On June 2, 2009, Mr. Coleman asked for an extension of time to file a notice of appeal. See Id. [Dkt. # 59].

Although his motion for an extension of time was opposed, Mr. Coleman filed a notice of appeal with the U.S. District Court for the District of Columbia on July 1, 2009. See Id. [Dkt. # 62].

On July 15, 2009, the Bankruptcy Court denied the motion for an extension of time pursuant to Federal Rule of Bankruptcy Procedure 8001. See Id. (Mem. Op. & Order) [Dkt. ## 68, 69].

The Bankruptcy Court noted that Mr. Coleman had until May 21, 2009 to file a timely notice of appeal pursuant to Fed. R. Bankr. P. 8002(a)1.

Pursuant to Fed. R. Bankr. P. 8002(c)(2), the Bankruptcy Court could only entertain Mr. Coleman’s untimely motion upon a showing of excusable neglect. See Id. [Dkt. # 68] at 2.

The Bankruptcy Court determined that Mr. Coleman had failed to meet his burden of showing excusable neglect and denied his motion for an extension of time. See Id. at 10.

On August 21, 2009, the record on appeal was transmitted to the District Court. See Id. [Dkt. # 77].

After being assigned to this Court, Mr. Coleman filed motions on August 28, 2009 and September 9, 2009, seeking recusal of the undersigned. See [Dkt. ## 3, 4, 5].

On September 16, 2009, recusal was denied and Mr. Coleman was granted until September 30, 2009, to file a brief. See [Dkt. # 7].

On October 9, 2009, after Mr. Coleman failed to timely file a brief, the Court ordered him to show cause by October 23, 2009, why the Court should not dismiss the case pursuant to Fed. R. Bankr. P. 8002(a)(1), which requires that an appellant serve and file its brief within 15 days after

1 Effective December 1, 2009, Fed. R. Bankr. P. 8002(a) was amended to allow for a timely notice of appeal to be filed within 14 days of the date of the entry of the judgment, order, or decree to be appealed from. While the 14 day deadline does not apply to this case, Mr. Coleman’s filing would not have been timely under the amendment as the notice was filed more than 14 days after entry of judgment.

entry of the appeal. See [Dkt. # 8].

On October 23, 2009, Mr. Coleman moved for an extension of time to show cause, advising the Court that he had filed a mandamus action in the Circuit Court of Appeals seeking recusal of the undersigned. See [Dkt. # 9].

Thereafter, on October 29, 2009, Countrywide moved to dismiss the appeal for lack of jurisdiction. See Mot. to Dismiss [Dkt. # 10].

On December 30, 2009, the Court of Appeals denied Mr. Coleman’s petition for a writ of mandamus. See In re Coleman, No. 9-5390 (D.C. Cir. Dec. 30, 2009).

In accordance with Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988), this Court then advised Mr. Coleman of his obligation to respond to Countrywide’s motion to dismiss or face the prospect that the motion may be granted as conceded. See [Dkt. # 12].

The Court gave Mr. Coleman until January 19, 2010, to respond to the Court’s order to show cause and to file a response to the motion to dismiss. See Id.

Mr. Coleman was warned that failure to comply with the order could lead to dismissal of his appeal. See Id.

On January 19, 2010, Mr. Coleman petitioned the Circuit Court of Appeals to rehear his petition for a writ of mandamus.

Mr. Coleman simultaneously filed a motion here seeking an extension of time to show cause and to respond to the motion to dismiss until after the Circuit rendered its decision. See [Dkt. # 13].

The Circuit denied his petition per curiam on April 8, 2010. See In re Coleman, No. 9-5390 (D.C. Cir. Apr. 30, 2009).

On April 22, 2010, Mr. Coleman moved, yet again, for an indefinite extension of time to show cause and to respond to the motion to dismiss so he could petition the Supreme Court in mandamus to recuse the undersigned. See [Dkt. # 14].

The Court entered a Minute Order on April 23, 2010, giving Mr. Coleman until May 14, 2010, to show cause and respond to Countrywide’s motion to dismiss – with a clear warning that no further extensions would be granted and that failure to file a response could lead to dismissal of the case. See Minute Entry Order, Apr. 23, 2010.

Mr. Coleman has failed to file any response. Instead, Mr. Coleman filed a notice that he is seeking a stay of the case by the Circuit pending his petition to the Supreme Court to recuse the undersigned. See [Dkt. # 17].

II.      LEGAL STANDARD

When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged.

Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004).

To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings.

Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005).

No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is an Article III and a statutory requirement.

Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003).

The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists.

Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008).

While it is true that a court has an “obligation to construe pro se filings liberally, . . . .” United States v. Byfield, 391 F.3d 277, 281 (D.C. Cir. 2004),2 clear indications of a lack of jurisdiction will lead to dismissal.

2 See also Haines v. Kerner, 404 U.S. 519, 520 (1972) (noting that pro se complaints are held to “less stringent standards than formal pleadings drafted by lawyers . . .”); Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987) (noting that this less stringent standard “does not constitute a license for a plaintiff filing pro se to ignore the Federal Rules of Civil Procedure, . . . ”).

III.     DISCUSSION

A.   Federal Rule of Bankruptcy Procedure 8002

Federal Rule of Bankruptcy Procedure 8002 requires a party to file a notice of appeal within ten days after the judgment or order to be appealed from is entered. Fed. R. Bankr. P. 8002(a).

A party may move the bankruptcy court for an extension of time to file a notice of appeal before the time has expired, or no later than twenty days after expiration of the time upon a showing of excusable neglect. Fed. R. Bankr. P. 8002(c)(2).

Many circuit courts have found that a failure to timely file a notice of appeal is a jurisdictional defect barring appellate review.

See, e.g., Siemon v. Emigrant Savs. Bank (In re Siemon), 421 F.3d 167 (2d Cir. 2005)

(noting that untimely filings are a jurisdictional matter, even for pro se appellants);

In re LBL Sports Ctr., Inc., 684 F.2d 410, 412 (6th Cir. 1982)

(recognizing that time limit in predecessor rule 8002(a) was jurisdictional);

Robinson v. Robinson (In re Robinson), 640 F.2d 737, 738 (5th Cir. 1981) (same);

Ramsey v. Ramsey (In re Ramsey), 612 F.2d 1220, 1222 (9th Cir. 1980) (same);

In re Herwit, 970 F.2d 709, 710 (10th Cir. 1992) (same).

Furthermore, the advisory committee’s note to rule 8002(a) clarified that the rule is an “adaptation” of rule 4(a) of the Federal Rules of Appellate Procedure. Fed. R. Bankr. P. 8002 advisory committee’s note.

It is established that the time limit prescribed by Fed. R. App. P. 4(a) is “mandatory and jurisdictional.”

Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 264 (1978) (internal quotation marks omitted);

see also Bowles v. Russell, 551 U.S. 205 (2007).

However, the Supreme Court has recently injected some doubt into whether Rule 8002 is jurisdictional in nature.

In a string of cases, the Supreme Court has held that federal rules prescribing mandatory filing deadlines only deprive a court of jurisdiction where the deadline was statutorily created.

If a deadline lacks a statutory foundation, but is born of the judiciary through the federal rules, then the rule is an inflexible claim-processing rule, which is obligatory if invoked, but forfeited by a failure to bring a timeliness objection.

See Kontrick v. Ryan, 540 U.S. 443, 452-56 (2004) (holding that Fed. R. Bankr. P. 4004(a) is a non-jurisdictional claim- processing rule);

Eberhart v. United States, 546 U.S. 12, 15-17 (2005) (same for Fed. R. Crim. P. 33);

Bowles, 551 U.S. at 209-13

(holding that failure to abide by Fed. R. App. P. 4 deprives a court of jurisdiction as the rule echoed the deadlines set forth in 28 U.S.C. § 2107).

In the wake of these cases, neither the D.C. Circuit nor the Supreme Court has spoken to whether Fed. R. Bankr. P. 8002 is a jurisdictional bar or a claim-processing rule.

At least one circuit has found that the deadline in Rule 8002 is statutorily established and reaffirmed its earlier holding that Fed. R. Bankr. P. 8002 remains a jurisdictional hurdle.

See In re Latture, No. 09-6016, 2010 U.S. App. LEXIS 10276 (10th Cir. May 20, 2010).

The Third Circuit recently revisited its earlier holding in In re Universal Minerals, Inc., 755 F.2d 309 (3d Cir. 1985), and noted that it was now unclear whether failure to comply with Rule 8002 is a jurisdictional defect or a “non-jurisdictional ‘claim-processing rule’ that is mandatory when invoked by a party, but subject to waiver if no timeliness objection is raised.”

In re Fryer, 235 Fed. Appx. 951, 953 (3d Cir. 2007).

The Fryer Court did not resolve the ambiguity because even if the Rule were non-jurisdictional, the district court had correctly dismissed an untimely appeal as the appellee had invoked Rule 8002 in moving to dismiss on timeliness grounds. Id.

In this case, Mr. Coleman asked the Bankruptcy Court for an extension of time to file a notice of appeal twenty-two days after that Court had entered final judgment.

As the ten-day deadline for filing a motion had passed, see Fed. R. Bankr. P. 8002(a), Mr. Coleman could only proceed with his untimely appeal to this Court if he demonstrated excusable neglect.

See Fed. R. Bankr. P. 8002(c)(2).

The Bankruptcy Court found that Mr. Coleman had not shown excusable neglect and denied his motion to extend the time to file a notice of appeal.

Therefore, Mr. Coleman’s notice of appeal, filed with the District Court on July 1, 2009, was untimely.

If Rule 8002 is jurisdictional in nature, this Court lacks subject-matter jurisdiction to hear Mr. Coleman’s appeal and may dismiss the matter sua sponte.

Assuming, arguendo, that Rule 8002 is a claim- processing rule, the Court must still dismiss the matter as Countrywide invoked the Rule in raising a timeliness objection to the notice of appeal in its motion to dismiss.

See Mot. to Dismiss [Dkt. # 10] at 3.

B.   Federal Rule of Bankruptcy Procedure 8009

Federal Rule of Bankruptcy Procedure 8009 requires that an Appellant serve and file a brief within fifteen days after entry of the appeal.

See Fed. R. Bankr. P. 8009.3 Federal Rule of Bankruptcy Procedure 8001 and Local Rule 8009-1 authorize district courts to dismiss appeals when appellants file untimely briefs.

See Fed. R. Bankr. P. 8001(a)

(“An appellant’s failure to take any step other than timely filing a notice of appeal . . . is ground only for such action as the district court . . . deems appropriate, which may include dismissal of the appeal.”);

LCvR 8009-1

(“If, after an appeal has been noted . . . , the appellant fails to serve and file a brief within the time required by Bankruptcy Rule 8009, the District Court may, upon motion of the appellee . . . , or upon its own order, dismiss the appeal for failure to comply with [the time limit].”).

However, the D.C. Circuit disfavors summary dismissal for procedural violations and instead requires a district court to “consider[] the circumstances before [it] and explain[] why it is

3 Like Fed. R. Bankr. P. 8002, Rule 8009 was amended effective December 1, 2009, providing that an appellant shall serve and file a brief within 14 days after entry of the appeal.

in the interest of justice to dismiss rather than to proceed to the merits.”

English-Speaking Union v. Johnson, 353 F.3d 1013, 1022 (D.C. Cir. 2004)

(noting that a court, as a first measure, usually issues an order to show cause when a party fails to timely file a brief);

see also Canady v. Erbe Elektromedizin GmbH, 307 F. Supp. 2d 2, 9 (D.D.C. 2004)

(noting the Circuit’s “preference for an adjudication on the merits and a corresponding disfavor for resolving litigation by default[]”).

Nonetheless, dismissal is warranted after a party has ignored repeated orders by a court to file a brief.

For instance, in In re AOV Industries, Inc., the D.C. Circuit upheld a district court’s dismissal due to appellant’s failure to file a brief.

See 798 F.2d 491, 494 (D.C. Cir. 1986).

Following a ten-month delay, the district court ordered the appellant to file a brief or face dismissal.

The district court dismissed the case after the appellant failed to properly respond to the order and ignored a subsequent motion to dismiss. Id.

After entry of the notice of appeal on August 21, 2009, Mr. Coleman was granted an initial extension of time to file a brief, yet failed to comply with the Court’s order.

The Court responded by ordering Mr. Coleman to show cause why the case should not be dismissed for failure to timely file a brief. See [Dkt. # 8].

Mr. Coleman responded with a motion to extend time. See [Dkt. # 9].

Following the second extension of time, Countrywide moved the court to dismiss the case. See [Dkt. # 10].

Following Mr. Coleman’s unsuccessful appeal of the Court’s denial of his motion for recusal, the Court reminded Mr. Coleman of his obligation to respond to the order to show cause and the motion to dismiss, and warned that failure to do so could result in dismissal. See [Dkt. # 12].

Mr. Coleman responded twice more to deadlines set by the Court, not with responses, but with motions to extend time.

The last extension of time, granted on April 23, 2010, made clear that no further extensions would be granted and that failure by Mr. Coleman to file his responses by May 14, 2010, could lead to dismissal of the matter. See Minute Entry Order on April 23, 2010.

Mr. Coleman did not respond, except to notice the Court that he is pursuing an appeal to the Supreme Court. See [Dkt. # 17]. Following this notice, Countrywide renewed its motion to dismiss. See [Dkt. # 18].

Therefore, despite four substantial extensions of time, Mr. Coleman has yet to file a brief, or any other papers concerning his appeal.

This simply is not a case where the Court is considering dismissal for a simple procedural mistake or a slight delay, as efforts to obtain a response from Mr. Coleman have proven fruitless.

Justice does not prevent dismissal as Mr. Coleman’s failure to file any brief is just one of several infirmities with this appeal.4

C.   Local Rule 7(b)

Local Rule 7(b) provides a similar route for dismissal for failure to prosecute. Pursuant to the rule, the Court may treat as conceded any motion not opposed within the time limits.

See LCvR 7(b). Local Rule 7(b) is a “docket-management tool that facilitates efficient and effective resolution of motions . . . .”

Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004);

see also Weil v. Seltzer, 873 F.2d 1453, 1459 (D.C. Cir. 1989)

(appellant who failed to file response within time prescribed by Local Rule 7(b)’s predecessor “is deemed to have waived his opposition” to the motion and “may not now complain on appeal”).

Therefore, much like dismissal for failure to prosecute, Local Rule 7(b) allows for a court to manage its docket and to rule on motions where one party is lax in responding, or fails to respond altogether.

Mr. Coleman has placed this litigation on hold since the entry of the notice of appeal on August 21,

4 It also appears that Mr. Coleman has failed to comply with Fed. R. Bankr. P. 8006 by failing to file a designation of issues to be presented on appeal and items to be included in the record. See also Part A, supra, Part C, infra.

2009, and has failed to respond to Countrywide’s motion to dismiss despite explicit warnings that Local Rule 7(b) applies to the instant matter.

In accord with Local Rule 7(b), the Court will grant Countrywide’s motion to dismiss as conceded.

IV.     CONCLUSION

Based on Mr. Coleman’s untimely notice of appeal, his refusal to file a brief or show cause, and his failure to respond to Countrywide’s motion to dismiss despite notice that the motion could be granted as conceded, this case will be dismissed. A memoralizing Order accompanies this Memorandum Opinion.

Date: June 2, 2010

/s/   ROSEMARY M. COLLYER

United States District Judge