Bankruptcy Appeals May Be Dismissed for Failure to File a Rule-Compliant Appendix; Ehrenhaus Factors Not Required Absent Sanctionable Misconduct

I. Introduction

In Biondolillo v. Burke (10th Cir. July 7, 2026) (nonprecedential order and judgment), the Tenth Circuit affirmed the District of Colorado’s dismissal of a pro se creditor’s bankruptcy appeal for failure to prosecute—specifically, repeated failure to file a record appendix that complied with the applicable Bankruptcy Rules and local rules. The dispute arose out of a failed business transaction between entities owned by Jason Biondolillo (Veteran Roofing LLC) and Michael Burke (Austin Grady Builders LLC), followed by Burke’s Chapter 7 bankruptcy and Biondolillo’s attempt to revoke Burke’s discharge via an adversary proceeding.

The central appellate issue was procedural: whether the district court abused its discretion by dismissing the bankruptcy appeal after multiple deficiency notices and an additional opportunity to cure, and whether the district court was required to apply the dismissal-factor framework from Ehrenhaus v. Reynolds.

II. Summary of the Opinion

The Tenth Circuit affirmed. It held that:

  • The district court acted within its discretion in dismissing the appeal after Biondolillo repeatedly failed to file a compliant appendix.
  • The appendices were materially noncompliant (missing listed documents; lacking a table of contents; lacking consecutive, distinguishable pagination), despite multiple notices and instructions.
  • Even assuming the deficiencies were “technical and curable” and that Biondolillo acted in good faith, he did not explain his failure to respond to the district court’s final order offering additional time to file a compliant appendix and reinstate the appeal.
  • The district court was not required to analyze the Ehrenhaus factors because it was not imposing a sanction for intentional misconduct; it dismissed for failure to cure procedural deficiencies after notice and opportunity.
  • The Tenth Circuit granted Biondolillo leave to proceed in forma pauperis on appeal.

III. Analysis

A. Precedents Cited

  1. James v. Wadas, 724 F.3d 1312 (10th Cir. 2013)

    The panel invoked James for the familiar proposition that courts liberally construe pro se filings but do not act as the litigant’s advocate. This framing mattered because Biondolillo’s primary defense was functional leniency—i.e., that his errors were curable and made in good faith. The court accepted liberal construction but treated compliance with core procedural rules as still required.

  2. Murray v. Archambo, 132 F.3d 609 (10th Cir. 1998)

    Murray supplied the standard of review: dismissals under local rules are reviewed for abuse of discretion. This deferential lens substantially shaped the outcome; the question became not whether dismissal was the “best” option, but whether it was outside the range of permissible choices after repeated noncompliance and notice.

  3. McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129 (10th Cir. 2006)

    The court cited McInnis to reinforce that a district court’s application of its local rules is reviewed for abuse of discretion. This supports institutional respect for docket management and for enforcing procedural requirements that enable merits review.

  4. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005)

    Garrett provided the critical limiting principle for pro se litigants: they must follow the same procedural rules as other litigants. The opinion relies on this to reject any suggestion that pro se status excuses compliance with appendix rules in bankruptcy appeals.

  5. In re Gledhill, 76 F.3d 1070 (10th Cir. 1996)

    In re Gledhill was cited for de novo review of a district court’s interpretation of the Bankruptcy Rules. While the ultimate ruling turned largely on discretionary enforcement, this citation signals that the panel independently confirmed what Rule 8018 requires and that the district court correctly understood those requirements.

  6. Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992)

    Biondolillo argued the district court should have applied Ehrenhaus before dismissing. The Tenth Circuit rejected that premise, describing Ehrenhaus as applicable when dismissal functions as a sanction for intentional misconduct. Here, the dismissal was treated as a failure-to-prosecute disposition following repeated noncompliance and an unutilized opportunity to cure, not as a punitive sanction for deliberate bad faith.

  7. Lee v. Max Int'l, LLC, 638 F.3d 1318 (10th Cir. 2011)

    The panel acknowledged, via Lee, the strong preference for resolving cases on the merits. But the citation is used as a counterbalanced principle: the merits preference does not override a party’s obligation to follow essential procedural steps, especially after repeated warnings and a final invitation to cure.

B. Legal Reasoning

The court’s reasoning proceeded in three moves:

1. Identify the governing procedural duties

The panel anchored the dispute in the mechanics of bankruptcy appeals. Under Fed. R. Bankr. P. 8018, an appellant must file an appendix with the principal brief and the appendix must conform to required content and formatting. The court also relied on 10th Cir. BAP L.R. 8018-1 (adopted in the District of Colorado by D.C. Colo. LAPR 16.2(a)), including:

  • A table of contents listing the full name of each document, the bankruptcy docket number, and the appendix page where it appears (L.R. 8018-1(c)); and
  • Consecutive pagination with appendix page numbers distinguishable from page numbers on underlying documents (L.R. 8018-1(d)).

2. Apply those duties to the record of repeated noncompliance

The panel described escalating opportunities to fix the problem:

  • The first two “appendices” listed documents but contained none of them and were not properly paginated.
  • The later submission contained documents but lacked a table of contents and still failed distinguishable, consecutive pagination.
  • The district court issued multiple deficiency notices, then a dismissal “subject to” a 14-day cure period, then denied an inadequate cure motion while expressly explaining what a compliant appendix must contain.

On these facts, the panel concluded the district court’s enforcement of the rules—and its ultimate dismissal for failure to prosecute—fell comfortably within its discretion.

3. Reject the appellant’s main legal objections

  • “Technical and curable” deficiencies / good-faith effort: The court effectively held that curability and good faith do not matter if the appellant fails to take the final, clear opportunity to cure—particularly after the court specifies exactly what to do. Biondolillo’s unexplained failure to respond to the January 29, 2026 order was decisive.
  • Ehrenhaus factors: The panel held the district court did not err by not applying Ehrenhaus, because the dismissal was not framed as a sanction for intentional misconduct. In other words, not every dismissal that ends a case triggers the same sanction-factor analysis; context and rationale matter.
  • Merits preference: The court acknowledged the preference but treated the appendix requirement as a gateway to merits review: without a compliant record, meaningful appellate review is impaired.

C. Impact

Although expressly “not binding precedent” (except for law of the case, res judicata, and collateral estoppel), the decision is a clear signal about procedural rigor in bankruptcy appeals in the Tenth Circuit:

  • Appendix compliance is not optional. An appendix that is merely an index, or that lacks required organization/pagination, can justify dismissal after notice and opportunity to cure.
  • Pro se appellants receive constructional leniency, not procedural exemption. Courts may explain deficiencies and offer cure periods, but litigants must follow the rules.
  • Ehrenhaus is not a universal prerequisite to dismissal. When dismissal rests on failure to prosecute or failure to cure procedural defects (rather than punishment for intentional misconduct), courts may dismiss without a full Ehrenhaus analysis—at least where the litigant is warned and given an opportunity to correct.
  • Docket management and appellate functionality are emphasized. The ruling reinforces that appendices are essential to appellate review; missing documents and improper pagination impede the court’s ability to assess alleged error.

IV. Complex Concepts Simplified

  • Adversary proceeding: A lawsuit within a bankruptcy case (similar to a civil complaint) used to resolve disputes such as discharge objections.
  • Discharge / revocation of discharge (11 U.S.C. §§ 727, 727(d)): A discharge wipes out many debts. Revocation is an extraordinary remedy that can undo the discharge in limited circumstances (often involving fraud or misconduct), and it must be properly pleaded and proven.
  • Appendix (in an appeal): A compiled set of key record excerpts the appellate court needs to evaluate the appeal. If the appendix is missing documents, the appellate court cannot reliably review the issues.
  • Consecutive, distinguishable pagination: Page numbers must run in order across the appendix (e.g., App. 1, App. 2, App. 3...) and be clearly different from page numbers that appear on the original documents, so citations are unambiguous.
  • Mandate: The formal step when an appellate court (or, here, the district court acting as an appellate court) issues its final directive concluding the appeal in that court.
  • In forma pauperis: Permission to proceed without prepaying filing fees due to inability to pay.
  • Abuse of discretion: A deferential review standard; reversal is warranted only if the lower court made a clear error of judgment or exceeded permissible choices.

V. Conclusion

Biondolillo v. Burke reinforces a practical rule for bankruptcy appellants: the right to appellate review depends on meeting foundational procedural requirements, especially filing a rule-compliant appendix. Even where deficiencies are curable and the appellant acts in good faith, repeated noncompliance—followed by a failure to take a final, explicit opportunity to cure—supports dismissal for failure to prosecute. The decision also clarifies that the Ehrenhaus v. Reynolds factor analysis is not automatically required where dismissal is not imposed as a sanction for intentional misconduct, but rather as a consequence of uncured procedural defects after notice and opportunity.