Opinion
Bankruptcy Case 07-13114-WHD. Adversary Proceeding 08-1009-WHD.
5-26-2010
IN THE MATTER OF: CHERYL L. BUCCIARELLI, Debtor. JEFFREY WAYNE DUNCAN DIANE STERNLIEB, Plaintiffs, v. CHERYL LYNN BUCCIARELLI, Defendant.
ORDER
Before the Court is the Motion to Extend Time to File Appeal, filed by Cheryl Lynn Bucciarelli (hereinafter the "Defendant"). This motion arises in connection with a complaint to determine dischargeability of a particular debt, filed by Jeffrey W. Duncan and Diane Sternlieb (hereinafter the "Plaintiffs"). Accordingly, this matter constitutes a core proceeding within the subject matter jurisdiction of the Court. See 28 U.S.C. § 157(b)(2)(I); § 1334.
On February 22, 2010, following a trial on the Complaint, the Court entered an order and judgment finding the debt at issue nondischargeable pursuant to section 523(a)(2) of the Bankruptcy Code. A copy of the Order and Judgment were served by the Bankruptcy Noticing Center upon the Defendant and her attorney of record, Gary W. Brown. The Defendant filed the instant motion to extend the time for filing a notice of appeal on March 19, 2010. The Motion is opposed by the Plaintiffs.
Rule 8002 of the Federal Rules of Bankruptcy Procedure provides that a "notice of appeal shall be filed with the clerk within 14 days of the date of the entry of the judgment, order, or decree appealed from." Fed. R. Bankr. P. 8002(a). This Court may extend the time for filing a notice of appeal so long as the judgment, order, or decree appealed from does not involve certain aspects of the bankruptcy case, none of which are implicated by this case. See Fed. R. Bank. P. 8002(c)(1). A request for an extension of the time to file a notice of appeal, however, must be made by written motion filed before the time for filing a notice of appeal has expired, except that such a motion filed not later than 21 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect." Fed. R. Bank. P. 8002(c)(2).
In this case, the Order and Judgment were entered on February 22, 2010. Accordingly, the original time for filing a notice of appeal pursuant to Rule 8002(a) expired on March 8, 2010. The Defendant failed to file her request for an extension of time until March 19, 2010, ten days after the time for filing the notice of appeal expired. Therefore, the Court can extend the time for filing the notice of appeal only if the Court finds that the Defendant's failure to file timely a notice of appeal resulted from "excusable neglect."
Factors to be considered when determining whether a showing of excusable neglect has been made include: "(1) the danger of prejudice to opposing parties; (2) length of delay in judicial proceedings and its impact; (3) the reason for the delay, including whether it was in the control of the late-filer; and (4) whether the late-filer acted in good faith." In re Lang, 414 F.3d 1191 (10th Cir. 2005) (citing Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993)). "Inadvertence or mistake of counsel .. . does not constitute excusable neglect under this standard." In re Kloza, 22 Fed. Appx. 547 (9th Cir. 2007). Even a lack of notice of the entry of an order does not constitute excusable neglect, as "it is the party's affirmative duty to monitor the dockets." Id.; see also Considine v. Atkinson, 188 F.3d 506 (6th Cir. 1999) (failure to receive notice of the order was not grounds for finding excusable neglect where litigant did not receive the order because "he did not keep the bankruptcy court apprised of his current address as required under Rule 9009").
The only basis provided by the Defendant as to why she failed to file a notice of appeal within the required time is that she moved from the address on file with the Court without providing the Court with notice of her change of address, which caused a delay in her receipt of notice of the February 22, 2010 Order and Judgment. The Defendant also contends that, once she did receive the order, she immediately contacted her attorney of record, who stated that he could not handle the matter due to his retirement and advised her that she would need to find a new attorney. Even assuming the facts are as the Defendant presents them, if the Defendant had complied with her obligation to apprise the Court of her change of address, the Defendant would have received her copy of the Order and Judgment in sufficient time to either locate new counsel or to file a timely motion to extend the time for filing a notice of appeal. Her failure to receive notice of the Order and Judgment does not constitute excusable neglect within the meaning of Rule 8002, and, accordingly, the Defendant's Motion to Extend Time to File Appeal must be, and hereby is, DENIED.