Summary
holding that pro se "Appellant's Notice of Appeal was not timely filed. Compliance with Rule 8002 is mandatory and jurisdictional."
Summary of this case from Thompson v. JP Morgan Chase Bank, N.A.Opinion
06 CIV. 2685 (DLC).
August 15, 2006
MEMORANDUM OPINION ORDER
Appellee moves to dismiss appellant's appeal as untimely. For the reasons described below, that motion is granted.
United States Bankruptcy Judge Arthur J. Gonzalez issued an order on July 9, 2004 with regard to the final fees and expenses in appellant's bankruptcy case. Appellant filed a timely Notice of Appeal relating to this Final Fee Order on July 19, but subsequently withdrew the appeal on August 24.
On December 27, 2005, appellant sent a letter to the bankruptcy court. Chief Bankruptcy Judge Stuart N. Bernstein sent a letter in reply noting that it was not clear from the appellant's letter what relief appellant requested but that it "appear[ed] that [appellant felt] aggrieved by certain actions and decisions made in [his] case, primarily by Judge Arthur J. Gonzalez." Chief Judge Bernstein explained that he would take no further action on the letter, observing that appeals from Judge Gonzalez's orders are heard in the District Court.
Judge Gonzalez did, however, take further action on the letter. A hearing was held on February 1, 2006 to provide appellant with an opportunity to explain the relief he sought. On February 7, Judge Gonzalez entered an order denying relief. The February 7 Order notes that appellant appeared to seek "reconsideration of this Court's prior ruling entered on June 30, 2004," and included in the July 9 Order. The February 7 Order concludes, "Based on a review of the docket [at] the hearing of February 1, 2006, the Court finds there is no basis upon which any relief sought by the Debtor should be granted." The February 7 Order was entered on the docket on February 7. Appellant filed a Notice of Appeal on February 21, 2006.
Under Rule 8002 of the Federal Rules of Bankruptcy Procedure, a "notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from." Rule 8002(a), Fed.R.Bankr.P. When computing time under the Bankruptcy Rules, weekends and holidays are included unless the "the period of time prescribed or allowed is less than 8 days." Rule 9006(a), Fed.R.Bankr.P.
Appellee moves to dismiss the appeal on the grounds that the time for appeal from the Bankruptcy Court's final order of July 9, 2004 has lapsed. That is certainly true. But even construing the Notice of Appeal as an appeal from the February 7 Order denying appellant's request for reconsideration, the appeal is still untimely. Ten days from February 7 was February 17; appellant filed his Notice of Appeal on February 21.
Rule 8002(c) permits the extension of time for appeal under certain limited circumstances, none of which were met here. A request for an extension of time must be made either by written motion filed before the time for appeal has expired, or by motion filed not later than twenty days following expiration of time for an appeal. Rule 8002(c)(2), Fed.R.Bankr.P. A motion filed after the time for appeal has lapsed may only be granted upon a showing for excusable neglect. Id. Appellant made no motion for an extension of time, nor has he given any indication that he would have been able to establish excusable neglect had such a motion been made. Indeed, appellant's opposition to the present motion to dismiss consisted of nothing more than a collection of handwritten notes that appeared to relate to merits of his appeal; there was no brief or other document containing any discussion relating to the timing of the Notice of Appeal.
Appellant's Notice of Appeal was not timely filed. Compliance with Rule 8002 is "mandatory and jurisdictional." In re Siemon, 421 F.3d 167, 169 (2d Cir. 2005) (citation omitted). Accordingly, it is hereby
ORDERED that the motion to dismiss the appeal as untimely is granted. The Clerk of Court shall close the case.
SO ORDERED.