Opinion
05 Civ. 3179 (PAC).
January 4, 2006
MEMORANDUM OPINION
BACKGROUND
On July 21, 2002 and November 8, 2002, Appellee Worldcom, Inc. ("Appellee" or "Debtor") and certain of its subsidiaries filed for bankruptcy in the U.S. Bankruptcy Court for the Southern District of New York. under chapter 11 of the United States Bankruptcy Code ("Bankruptcy Code"). (Appellee's Mem. of Law in Support of Mot'n to Dismiss Bankr. Appeal ("Mem. of Law"), Ex. A, at 2.) By order dated October 29, 2002, the Bankruptcy Court set January 23, 2003 as the deadline for filing of a proof of claim against the Debtor. (Id.)
Worldcom, Inc. became MCI, Inc. after confirmation a Plan of Reorganization on October 31, 2003. Since the underlying bankruptcy proceeding refers to Worldcom, Inc., however, the Court will refer to appellee as "Worldcom" rather than "MCI" throughout this opinion.
Appellant Brenda Petite-El, d/b/a Inka's Additions ("Appellant" or "Ms. Petite-El") owns and operates Inka's Additions, a business that produces and sells wigs to women who suffer hair loss. (Id. at 3.) On January 23, 2003, Appellant filed a proof of claim against the Debtor in bankruptcy court, claiming that she was entitled to lost profits based upon the Debtor's failure to properly transfer her business telephone line from one location to another in 1999. (Id. at 5.) Appellant claimed damages in the amount of $359,280. (Id.)
The Debtor filed an objection to Appellant's claim as part of its Ninth Omnibus Objection to Claims on May 22, 2003. (Id. at 2.) On March 12, 2004, the Debtor filed a Motion for Summary Judgment to dismiss Appellant's claim for lack of sufficient proof of the claim. (Id. at 3.) By order dated November 12, 2004, the bankruptcy court granted summary judgment for the Debtor, dismissing Appellant's claim in full. (Id. at 8.)
On November 12, 2004, immediately after the bankruptcy court entered the Summary Judgment Order ("Order"), Mr. Jeffrey A. Befort, attorney for the Debtor, mailed two copies of the Order — one copy was sent certified mail, return receipt requested, and the other copy was sent Federal Express, priority overnight — to Appellant at the address listed on Appellant's proof of claim: 2135 Newnan Street, East Point, Georgia 30344. (Mem. of Law, Exs. B C; Appellant's Obj. to Appellee's Mot'n to Dismiss (Appellant's Obj."), Copy A.) The envelope mailed certified mail was returned to Mr. Befort as "unclaimed" on December 1, 2004. (Mem. of Law, Ex. B.) It is unclear whether Appellant ever retreived the copy of the Order sent Federal Express, though at least two attempts by Federal Express to deliver the envelope were unsuccessful. (Appellant's Obj., Copy A.) On December 10, 2004, Mr. Befort sent another copy of the Order to Appellant at the same address, this time by first-class postal mail. The letter was returned to sender as undeliverable. (Mem. of Law, Ex. D.)
Interestingly, Appellant submits a photocopy of the Federal Express label, dated November 12, 2004 and marked "deliver by November 15, 2004," as an exhibit to support her Objections. This suggests that Appellant did, at some point in November 2004, receive the Federal Express package contained the Order from Debtor's counsel.
Appellant attributes these delivery failures to her move from 2135 Newnan Street in East Point, Georgia to 289 Brookview Drive in Riverdale, Georgia in November 2004. (Mem. of Law, Ex. G, at 2; Appellant's Obj., Copy C.) Appellant began the move on November 12, 2004, the same day the Order was mailed, and completed her move on November 15, 2004. (Mem. of Law, Ex. G, at 2.) Appellant notified the post office of her new address on November 9, 2004 (Appellant's Obj., Copy B), but did not notify the bankruptcy court of this change of address.
During the first week of December 2004, Appellant contacted the bankruptcy court to inquire about getting copies of documents pertaining to her claim. (Mem. of Law, Ex. G., at 1.) Appellant did not notify the court of her change of address during her telephone call. (Id. at 1 n. 1.) On December 13, 2004, the bankruptcy court sent Appellant a letter containing information on how to obtain documents relating to her case. (Id. at 1-2.) The letter was mailed to the Newnan Street address and was not returned to the court as undeliverable. (Id. at 2.)
On December 20, 2004, Appellant filed a Notice of Appeal in the bankruptcy court appealing the summary judgment order. (Mem. of Law, Ex. E.) On January 13, 2005, the Debtor moved to dismiss Appellant's Notice of Appeal as untimely because Appellant failed to file her Notice of Appeal within the time allowed under Rule 8002 of the Federal Rules of Bankruptcy Procedure ("Bankruptcy Rules"). (Mem. of Law, Ex. G, at 2.) Appellant objected to the Debtor's motion to dismiss, citing "excusable neglect" as a result of her move. (Id.) The bankruptcy court interpreted Appellant's objection as an extension of time to file a notice of appeal, and subsequently denied the request for an extension of time as untimely. (Id. at 3.)
Appellant filed a Notice of Appeal in this court on March 24, 2005. As in the previous appeal, the Debtor filed a motion to dismiss Appellant's Notice of Appeal as untimely and Appellant filed an objection. (Appellee's Notice of Mot'n to Dismiss, Apr. 16, 2005; Appellant's Obj., Sept. 7, 2005.) Appellant raises the same "excusable neglect" argument that was previously raised in the bankruptcy court.
Appellant appeals from the November 12, 2004 Order granting summary judgment, not from the March 8, 2005 Order dismissing Appellant's previous appeal.
DISCUSSION
Rule 8001 of the Bankruptcy Rules requires that an appeal of any judgment, order or decree of the bankruptcy court "be taken by filing a notice of appeal with the clerk within the time allowed by Rule 8002." Fed.R.Bankr.P. 8001(a) (emphasis added). Rule 8002 mandates that a party shall file a notice of appeal "within 10 days of the date of the entry of the judgment, order, or decree." Id 8002(a). A request for an extension of time to file a notice of appeal should be made by written motion within the original 10 day filing period. Id. 8002(c). Failure to request an extension within the 10-day appeals period is not automatically fatal to the appeal, however, as "a motion filed not later than 20 day after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect." Id. This gives a party a total of 30 days to request an extension of time to file its notice of appeal; a party may not request an extension of time to file a notice of appeal after this 30-day window Id.
The bankruptcy court entered the summary judgment order on November 12, 2004. This gave Appellant until November 23, 2004 to file her notice of appeal, or until December 13, 2004 to request an extension of time to file her notice of appeal with a showing of "excusable neglect." Appellant did not file her original notice of appeal with the bankruptcy court until December 20, 2004. (Mem. (bad text) Law, Ex. G, at 3.) Still, Appellant asks this Court, as she did the bankruptcy court below, to overlook her failure to file by December 13, 2004 and consider her "excusable neglect" argument regardless. The bankruptcy court refused to adopt Appellant position, as does this Court. The Bankruptcy Rules make clear that "[a]n extension of time for filing a notice of appeal may not exceed 20 days from the expiration of the [10-day] time for filing a notice of appeal." Fed.R.Bankr.P. 8002(c). Since Appellant failed to request an extension of time to file her notice of appeal by December 13, 2005, the Court does not have the authority to grant Appellant an extension of time at this late date.
Appellant mailed her notice of appeal to the bankruptcy court on December 13, 2004, but it was not actually received and filed by the court until December 20, 2004. But "[t]he filing date of a notice of appeal is the date the clerk receives it, not the date it is mailed." Aspect Tech. of Plano, Texas v. Simpson, 215 B.R. 885, 886 (B.A.P. 10th Cir. 1998). Therefore, the Court will not consider Appellant's notice of appeal as "filed" on December 13, 2004, which would put her appeal (or request for an extension of time to file her appeal) within the 30-day window permitted by Bankruptcy Rule 8002.
Appellant urges this Court to adopt a different interpretation of Bankruptcy Rule 8002 than the bankruptcy court below. Appellant suggests that the Court grant her an extension of time to file her notice of appeal, despite her failure to file within the 20-day grace period, based on the strength of her excuse, her personal hardships, and her difficulties as a pro se litigant. In support of her position, Appellant cites Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004), in which the Ninth Circuit held that there is no rigid per se rule against late filings of a notice of appeal under Rule 4(a) of the Federal Rules of Appellate Procedure, and therefore a Court has discretion to consider the equities of the case when deciding whether to grant or deny an otherwise untimely request for an extension of time. See 389 F.3d at 859. But Pincay is not applicable to Appellant's case. In Pincay, the appealing party missed the 30-day deadline for filing a notice of appeal, but filed a request for an extension of time within the 30-day grace period permitted by Appellate Rule 4. Id. The question, then, was whether the district court abused its discretion by finding "excusable neglect" on the unique facts of that case. Id. at 854. This would be the equivalent of Ms. Petite-El failing to file her notice of appeal by November 23, 2005, but properly filing her request for an extension of time by December 13, 2005. This is not what happened here, so Pincay does not apply and cannot be used to support Appellant's position.
Appellate Rule 4 requires that a party file a Notice of Appeal within 30 days, but permits a 30-day grace period in which the party may request an extension of time to file upon a showing of "excusable neglect." Fed.R.App.P.4.
Regardless, the Second Circuit has recognized that "the Ninth Circuit takes a more relaxed view of deadlines to appeal than [the Second Circuit]," Zhong Guang Sun v. U.S. Dep't of Justice, 421 F.3d 105, 109 n. 6 (2d Cir. 2005), so it is unclear what weight this Court should Pincay even if did apply.
Applying the bankruptcy rules to Appellant's case, the Court must find, as the bankruptcy court did, that Appellant's notice of appeal was untimely, as was any request for an extension of time to file. Since the time limits for appeal under Bankruptcy Rule 8002 are jurisdictional in nature, the Court does not have jurisdiction to review the bankruptcy court's November 12, 2004 Order. See In re N.Y. Int'l Hostel, Inc., 194 B.R. 313, 316 (S.D.N.Y. 1996); accord In re Enron Corp., No. 02 Civ. 5638 (BSJ), 2003 WL 223455, at *4 (S.D.N.Y. Feb 03, 2003). The Court cannot bend the time limits set forth in Bankruptcy Rule 8002(c) at its discretion. See, e.g., N.Y. Int'l Hostel, 194 B.R. at 317 (refusing to consider Appellant "excusable neglect" argument where the appeal was filed one day after the 20-day grace period had expired); see also Moore v. Hogan, 851 F.2d 1125, 1127 (8th Cir. 1988) (finding that the question of excusable neglect is irrelevant where the Appellant requested an extension after the time permitted under Rule 8002(c)). Accordingly, the Court has no choice but to grant Appellee's Motion to Dismiss.
CONCLUSION
Because Appellant failed to file her Notice of Appeal, or request for an extension of time to file her Notice of Appeal, within the time periods allowed under Bankruptcy Rule 8002, the Court does not have the jurisdiction to review the bankruptcy court's November 12, 2004 grant of summary judgment. Appellant's motion to dismiss Appellant's bankruptcy appeal is GRANTED. Appellant's notice of appeal is dismissed. The Clerk of the Court is directed to enter judgment and close out this case.
SO ORDERED.