Opinion
Nos. 97-2052 and 97-2053
May 13, 1997
MEMORANDUM
Presently before the Court is the motion of Appellee Sunbank/Miami, N.A., filed April 29, 1997, and the motion of Appellees Ebenfort Investments, N.V., Najual Brothers, Inc. and Natalia L. Calderoni, filed April 14, 1997, to dismiss the above-captioned bankruptcy appeals for lack of jurisdiction and mootness.
Appellant Leonard A. Pelullo commenced these appeals on February 19, 1997 with the filing of two notices of appeal for orders entered by the bankruptcy court on February 5, 1997 and February 7, 1997. In this Court's docket number 96-2052, Appellant appeals the order of Bankruptcy Judge Thomas M. Twardowski entered on February 7, 1997 granting Sunbank/Miami, N.A. summary judgment (Bankruptcy Case Number 95-22430T; Adv. No. 96-2137). In this Court's docket number 96-2053, Appellant appeals the order of Bankruptcy Judge Thomas M. Twardowski entered on February 5, 1997 denying Pelullo's motion for reconsideration of the bankruptcy court's order of September 17, 1996 denying Pelullo's motion for leave to file an amended complaint with prejudice and dismissing Pelullo's original complaint as to Ebenfort with prejudice (Bankruptcy Case Number 95-22430TMT; Adv. No. 96-2137).
The Appellant has not yet filed a response to either of the Appellees' motions to dismiss. On May 1, 1997, the Appellant filed a motion requesting additional time to file a response. However, for the reasons set forth below, the Court has determined that it must dismiss the appeals for lack of jurisdiction because they were not timely filed. Therefore, Appellant's request for additional time to respond to the motions to dismiss will be denied since the law is clear that the Court has no jurisdiction.
This Court may only exercise its bankruptcy appellate jurisdiction over appeals from a final judgment, order, or decree of a bankruptcy judge which has been timely filed. 28 U.S.C. § 158(a); Bankruptcy Rules 8001, 8002. There is no question that the bankruptcy court's entry of summary judgment on February 7, 1997 and its order denying reconsideration entered on February 5, 1997 are final judgments, orders, or decrees. However, because Appellant failed to file his notices of appeal within the ten day period required by the bankruptcy rules, his appeals are untimely and this Court has no jurisdiction over them.
Bankruptcy Rule 8002(a) provides that "[t]he notice of appeal shall be filed with the clerk within 10 days of the date of the entry of judgment, order, or decree appealed from." Appellant filed notices on February 19, 1997 appealing from orders entered by the bankruptcy court on February 5, 1997 and February 7, 1997. Bankruptcy Rule 9006(a) governs the method for computing time under the bankruptcy rules. It provides:
In computing any period of time prescribed or allowed by these rules . . . the day of the act . . . from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday. . . . As used in this rule . . . "legal holiday" . . . includes . . . Washington's birthday. . . .
Bankruptcy Rule 9006(a).
As heretofore discussed, the bankruptcy court entered summary judgment on February 7, 1997 and its denial of reconsideration on February 5, 1997. Thus, under Bankruptcy Rule 8002(a), Appellant had to file his notice of appeal for the February 5th order on or before February 15th. However, because this day was a Saturday and the following Monday was Washington's birthday, a legal holiday, the notice of appeal was due on February 18, 1997 pursuant to Rule 9006(a). Similarly, under Bankruptcy Rule 8002(a), Appellant had to file his notice of appeal for the February 7th order on or before February 17th. However, because this day was Washington's birthday, a legal holiday, the notice of appeal was due on February 18, 1997 pursuant to Rule 9006(a).
Appellant filed his notices of appeal on February 19, 1997, one day after the deadline for both the summary judgment order and the order denying his motion for reconsideration. Therefore, his appeals were untimely filed under the ten-day deadline of Bankruptcy Rule 8002(a) as computed by Bankruptcy Rule 9006(a). "This deadline is strictly construed. The failure to file a timely notice of appeal creates a jurisdictional defect barring appellate review." Shareholders; Sheridan Broadcasting Corp. v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997) (citing In re Universal Minerals, Inc., 755 F.2d 309, 311-12 (3d Cir, 1985)). Therefore, because the notices of appeal were not timely filed, Appellant's appeals must be dismissed for lack of jurisdiction. In re Universal Minerals, Inc., 755 F.2d at 312; see also In re Herwit, 970 F.2d 709, 710 (10th Cir. 1992) (dismissing appeal for lack of jurisdiction where appellant filed notice of appeal one day late).
The bankruptcy rules permit an extension of time for filing a notice of appeal in limited circumstances upon a showing of "excusable neglect." Bankruptcy Rule 8002(c). However, the request for such an extension must be made no more than 20 days after the expiration of the time for filing a notice of appeal. Id. Thus, since more than 20 days have elapsed since the time for filing a notice of appeal expired on February 18, 1997, the Appellant could not receive an extension of time even if he could show "excusable neglect." Shareholders; Sheridan Broadcasting Corp., 109 F.3d at 879.
Accordingly, because the Appellant filed his notices of appeal one day after the time required by Bankruptcy Rule 8002(a), this Court has no jurisdiction over these untimely filed appeals and they must be dismissed.
An appropriate Order follows.
3. Cablevision has failed to raise a genuine issue of material fact as to whether it had actual notice of this proceeding.
4. Application of the deadline contained in FRBP 4007 to Cablevision does not deprive it of property without due process of law.
5. Notice to Cablevision's counsel was sufficient to apprise Cablevision of the proceeding within constitutional mandates.
6. Section 105 of the Bankruptcy Court does not permit the Court, in circumstances such as those found in this case, to extend the deadline set forth in FRBP 4007.
7. Cablevision's motion for leave to file an untimely complaint is denied. The Debtor's cross-motion to dismiss is granted and the complaint is therefore dismissed in its entirety, without costs to either party.
Debtor's counsel is directed to settle on notice an order and separate judgment within ten days hereof.