Appeal from the District Court of the Virgin Islands Division of St. Croix, Appellate Division, D.C. Civil Action No. 87-0329.
Hutchinson, Cowen and Garth, Circuit Judges.
HUTCHINSON, Circuit Judge
Seascape Pool Center, Inc. (Seascape) and Robert J. Heym (Heym) appeal two orders of the District Court of the Virgin Islands, Appellate Division (appellate division). One dismissed their appeal from an order of the Territorial Court of the Virgin Islands,*fn1 and the other denied their motion for reconsideration. In both orders, the appellate division stated that its action was based on Seascape and Heym's failure to pay for the territorial court trial transcript, despite repeated requests to do so.
Seascape and Heym contend the appellate division abused the discretion Federal Rule of Appellate Procedure 3(a) gives it to dismiss appeals for lack of prosecution. We are unable to tell from this record whether the appellate division exercised its discretion under Rule 3(a) or instead relied on the arguably mandatory provisions of certain directives on transcripts that the district court's former chief judge and the court clerk issued to the bar.
We conclude that these directives cannot substitute mandatory dismissal for exercise of the discretion which Rule 3(a) requires before the sanction of dismissal is imposed for failure to comply with the requirements of Federal Rule of Appellate Procedure 10(b) relating to transcripts. Therefore, we will vacate the order dismissing Seascape and Heym's appeal and remand to the appellate division for further proceedings consistent with this opinion.
We have appellate jurisdiction over the appellate division's orders dismissing Seascape and Heym's appeal and denying their motion for reconsideration under 28 U.S.C.A. § 1291 (West Supp. 1989). Seascape and Heym had filed a timely appeal to the appellate division from the territorial court's order denying their Federal Rule of Civil Procedure 60(b) motion for reconsideration of the judgment against them.*fn2 We review the appellate division's order dismissing Seascape and Heym's appeal from the territorial court for failure to comply with the provisions of Rule 10(b) and its order denying their motion for reconsideration for abuse of discretion.
Horner began a debt collection action against Seascape in May, 1986 in the territorial court. After a bench trial, that court entered judgment for Horner on April 1, 1987. Seascape and Heym filed motions for relief from the judgment, pursuant to Federal Rule of Civil Procedure 60(b)(2), on April 27, 1987.*fn3 The trial court denied these motions on September 28, 1987. Seascape and Heym then filed a notice of appeal with the appellate division on October 23, 1987. The notice stated that they appealed from both "the Judgment entered against them and this Court's Order of September 23, 1987."*fn4 Joint Appendix (J.A.) at 5.
By letter dated December 1, 1987, the clerk of the district court informed Seascape and Heym that their appeal had been docketed that day. The clerk reminded them of their obligation, pursuant to Federal Rule of Appellate Procedure 3(e),*fn5 to pay a docket fee by December 8 and, pursuant to Rule 10(b),*fn6 to order the portions of the trial transcript relevant to the issues on appeal. The letter stated: "If you have not already done so, you should order the trial transcript within five (5) days of the date of this letter." Id. at 7. Thereafter, Seascape and Heym requested a trial transcript by letter dated December 7, 1987. Id. at 8.*fn7
By its order dated February 24, 1988, the appellate division dismissed the appeal for failure to timely prosecute pursuant to Rule 3(a).*fn8 Id. at 9. Seascape and Heym filed a motion for reconsideration the following day, asserting that their ...