Opinion
No. 78 Civ. 4285
January 3, 1979
Bankruptcy Rules — Notice of Judgment or Order — Appeals — Extension of Time — Excusable Neglect
The mere failure to receive notice of entry of an order is not the "exceptional circumstances" which would permit a finding of excusable neglect. An order was entered denying various plaintiffs' application to proceed in forma pauperis. On the same day, notice of entry was mailed to plaintiffs' attorney who never received the notice. Thereafter, an application was made, grounded on excusable neglect, requesting an extension of time to appeal that decision. The bankruptcy judge denied this application stating that the failure to receive notice did not constitute excusable neglect. The question of excusable neglect is left to the bankruptcy judge and will not be set aside unless "the reviewing court . . . has a definite and firm conviction that the court below committed a clear error of judgment. . ." Such is not the case here. Decisions in the Second Circuit have stated that more than the mere lack of notice must be present. The attorney must show diligent attempts to discharge his duties by making inquiries to discover the status of the case. Because of the unjustified reliance upon the bankruptcy clerk to inform them of the entry of judgment, counsel has not discharged his duty to keep abreast of the case. Thus, the bankruptcy judge's denial of an extension of time is affirmed. See Bankruptcy Rule 922 at ¶ 20,352.