Opinion
22-2021
04-18-2022
In re: RAILYARD COMPANY, LLC, Debtor. v. CRAIG DILL, Trustee; THOROFARE ASSET BASED LENDING FUND III, L.P., Appellees. RICK JARAMILLO, Appellant,
D.C. No. 1:20-CV-01172-KWR-LF (D. N.M.)
Before TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.
ORDER
Pro se appellant Rick Jaramillo seeks appellate review of the District of New Mexico's dismissal of his bankruptcy appeal and its imposition of filing restrictions on him. This matter is before the court on: (1) the jurisdictional show cause order it issued on March 9, 2022; and (2) Mr. Jaramillo's response to that order. Upon consideration of these filings, the district court docket, and the applicable law, the court dismisses the appeal as untimely filed for the reasons set forth below.
"A timely notice of appeal is both mandatory and jurisdictional." Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006) (quotation omitted). Thus, although Mr. Jaramillo is proceeding pro se, he must still comply with the time requirements in the procedural rules. See Mayfield v. U.S. Parole Comm'n, 647 F.2d 1053, 1055 (10th Cir. 1981) (dismissing pro se appeal filed three days late).
In a civil case like this one, an appeal must be filed within 30 days after entry of judgment. See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A) (notice of appeal in a civil case in which the United States is not a defendant "must be filed with the district clerk within 30 days after entry of the judgment or order appealed from"); see also Yamaha Motor Corp., USA v. Perry Hollow Mgmt. Co. (In re Perry Hollow Mgmt. Co.), 297 F.3d 34, 38 (1st Cir. 2002) ("Because the Trustee is a private bankruptcy trustee, who is not employed by the United States government, the Trustee is not an officer of the United States."); Voisenat v. Decker (In re Serrato), 117 F.3d 427 (9th Cir. 1997) (holding that "a court-appointed private bankruptcy trustee" is "an officer of the courts, but not an officer of the United States" for purposes of Rule 4(a)).
The district court entered final judgment in this matter on January 31, 2022, and entered an amended dismissal order the following day to correct a clerical error relating to the claims of Mr. Jaramillo's co-appellant in district court, Steve Duran. [See ECF No. 25 at 1, n.1]. Accordingly, Mr. Jaramillo's notice of appeal was due no later than March 3, 2022, even giving him the benefit of the district court's entry of the amended order on February 1, 2022. [See ECF No. 25]; Fed. R. App. P. 4(a)(1)(A). The district court did not receive Mr. Jaramillo's notice of appeal until March 7, 2022: four days after it was due.
In response to the show cause order, Mr. Jaramillo argues that his notice of appeal was timely because "the Court Clerk's in Santa Fe stated that Pro Se litigants get three days for mailing on all time sensitive filings" and his deadline so extended landed on March 5, 2022 (a Saturday) and rolled to the following business day, Monday March 7, 2022, when the district court received his notice.
The three additional days to which Mr. Jaramillo refers in his argument are only available, however, "[w]hen a party may or must act within a specified time after being served." Fed.R.Civ.P. 6(d) (emphasis added). And, even assuming district court personnel erroneously advised Mr. Jaramillo that the three-day rule applied to the filing of his notice of appeal, neither the district court nor this court have "authority to create equitable exceptions to jurisdictional requirements," even if the district court advised a prospective appellant to the contrary. See Bowles v. Russell, 551 U.S. 205, 214 (2007).
"[Rule 4(a)] is clear . . . that the appeal period is triggered by the date the judgment was entered, not the date a party receives a copy of the judgment." Williams v. United States, 810 Fed.Appx. 698, 700 (10th Cir. 2020) (unpublished). Stated differently, the appeal period begins to run on the date the district court entered judgment, not the date of service as Rule 6(e) contemplates for the addition of three days "after the period would otherwise expire." See Fed. R. App. P. 4(a)(1) (stating that the time period for appeal as of right in a civil action begins to run on the date "the judgment or order appealed from" is entered); Fed.R.Civ.P. 58(c) ("[J]udgment is entered at the following times: (1) if a separate document is not required, when the judgment is entered in the civil docket under Rule 79(a); or (2) if a separate document is required, when the judgment is entered in the civil docket under Rule 79(a) and the earlier of these events occurs: (A) it is set out in a separate document; or (B) 150 days have run from the entry in the civil docket."). Indeed, even complete "[l]ack of notice of the entry [of judgment] does not affect the time for appeal or relieve-or authorize the court to relieve-a party for failing to appeal within the time allowed . . . ." Fed.R.Civ.P. 77(d)(2).
The district court received Mr. Jaramillo's notice of appeal four days after it was due. As a result, "[t]he time limit has run and we are without jurisdiction under the facts of this case." Jenkins v. Burtzloff, 69 F.2d 460, 464 (10th Cir. 1995). Accordingly, the court dismisses this appeal.
APPEAL DISMISSED.