Opinion
NOT FOR PUBLICATION
Argued and Submitted at Pasadena, California, November 17, 2004
Appeal from the United States Bankruptcy Court for the Central District of California. Bk. No. LA 96-31858-ER, Adv. No. LA 03-01257-ER. Honorable Ernest M. Robles, Bankruptcy Judge, Presiding.
Before: KLEIN, MONTALI, and BRANDT, Bankruptcy Judges.
MEMORANDUM
This appeal by the debtor questions whether the bankruptcy court correctly concluded that excusable neglect existed so as to permit a timely notice of appeal under the terms of Federal Rule of Bankruptcy Procedure 8002(c)(2). We conclude that the bankruptcy court did not abuse its discretion in that respect and AFFIRM.
FACTS
The appellant, Paul Gurrola and appellee, Lone Star Security and Video, Inc., (" Lone Star") have engaged in protracted litigation over whether Lone Star's postpetition judgment on a prepetition judgment can be enforced notwithstanding the bankruptcy discharge.
After a false start that we sent back to the bankruptcy court as procedurally incorrect, Lone Star Sec. & Video, Inc. v. Gurrola, CC- 02-1313-KBaP (9th Cir. BAP December 20, 2002), Lone Star filed an adversary proceeding seeking to block enforcement of Gurrola's discharge.
After trial, the bankruptcy court ruled that Gurrola was not estopped from relying on his discharge. A memorandum decision was entered February 12, 2004, followed by a judgment entered on February 13, 2004.
Although Lone Star received the memorandum decision in the mail on February 18, 2004, the judgment did not arrive until February 25, 2004, two days after the 10-day appeal deadline.
On February 28, 2004, Lone Star filed a Motion to Extend Time to Appeal pursuant to Federal Rule of Bankruptcy Procedure 8002(c)(1), in which it argued excusable neglect based on the belated mail delivery. The motion was granted over Gurrola's opposition.
Although the two appeals were argued in tandem, we are resolving Lone Star's appeal, our No. CC-04-1143, in a separate opinion.
JURISDICTION
The bankruptcy court had jurisdiction via 28 U.S.C. § § 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C. § 158(a)(1).
ISSUE
Whether excusable neglect warranted extending the time in which to appeal.
STANDARD OF REVIEW
We review orders under Federal Rule of Bankruptcy Procedure 8002(c)(2) retroactively extending the time to file a notice of appeal for abuse of discretion. Marx v. Loral Corp., 87 F.3d 1049, 1053 (9th Cir. 1996). To reverse, we must have a " definite and firm conviction" that the court " committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Id., at 1054.
DISCUSSION
Under Federal Rule of Bankruptcy Procedure 8002(a), a notice of appeal must be filed within ten days of the date of the entry of the order appealed from. Fed.R.Bankr.P. 8002(a). " The timely filing of a notice of appeal is mandatory and jurisdictional." Key Bar Invs., Inc. v. Cahn (In re Cahn), 188 B.R. 627, 630 (9th Cir. BAP 1995), citing Browder v. Dir., Dept. of Corr. of Ill., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978), and Slimick v. Silva (In re Slimick), 928 F.2d 304, 306 (9th Cir. 1990).
Federal Rule of Bankruptcy Procedure 8002(c)(2), however, gives the bankruptcy court the discretion to extend the time in which to file a notice of appeal. Fed.R.Bankr.P. 8002(c)(2). The motion to extend must be in writing and must be filed no " later than 20 days after the expiration of the time for filing a notice of appeal." Id. The standard the bankruptcy court must apply in making its decision to extend time is excusable neglect. Id.
Gurrola argues that the bankruptcy court had no discretion to grant an extension of time under Rule 8002(c)(2) because Lone Star's explanation for not meeting the ten day filing deadline - i.e., lack of notice of entry of order - cannot be the basis for granting such relief. Gurrola contends that Federal Rule of Bankruptcy Procedure 9022(a) specifically removes such an excuse from the court's consideration. Rule 9022(a) provides, in part:
Lack of notice of the entry does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 8002.
Fed. R. Bankr. P. 9022(a) (emphasis added).
According to Gurrola, an absence of notice will never constitute a form of excusable neglect for purposes of extending time under Rule 8002(c)(2).
Lone Star argues that Gurrola's reading of Rule 9022(a) is unduly restrictive. It argues that the plain language of Rule 9022(a)'s final clause indicates that in some circumstances, an absence of notice will be a permissible reason for extending time to appeal under Rule 8002(c)(2). We agree with Lone Star.
Rule 8002 authorizes two methods for determining the length of time in which to file a notice of appeal. The first method is strict: the notice of appeal must be filed within ten days of entry of the order. Fed.R.Bankr.P. 8002(a). The second method is permissive: it gives the court the discretion to determine if the strict ten-day deadline should be extended, so long as a written motion to extend is filed no later than twenty days after that initial ten day period expired. Fed.R.Bankr.P. 8002(c)(2).
Federal Rule of Bankruptcy Procedure 8002(c)(1) enumerates six categories of orders or judgments in which an extension of time is never allowed. This case does not involve one of those enumerated orders.
Rule 8002(a) specifically excepts from its purview situations that the bankruptcy court determines, in its discretion, are appropriate for extending time. Here, the bankruptcy court acted within its authority and determined that Lone Star met its burden of proving excusable neglect and extended the time in which to file a notice of appeal.
Gurrola also argues that regardless of whether Rule 9022(a) prevented the court from extending time to appeal, the facts of this case do not constitute excusable neglect. Gurrola relies on Warrick v. Birdsell (In re Warrick), 278 B.R. 182 (9th Cir. BAP 2002), and contends that Lone Star's failure to follow unambiguous rules should not be considered excusable neglect.
In Warrick, a case where the bankruptcy court denied a motion to extend time, we stated that a party has an affirmative duty to monitor the dockets and that " it is well settled that failure to receive notice of entry of judgment or order is not an excuse for an untimely appeal." Warrick, 278 B.R. at 187, quoting Cahn, 188 B.R. at 632.
Gurrola further argues that despite Lone Star's affirmative duty to monitor the dockets, it had sufficient notice of the bankruptcy court's decision on February 13, 2004, when the court issued its Memorandum of Decision After Trial.
In deciding to grant Lone Star's motion for extension of time, the court relied on Pioneer Inv. Servs., Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and stated that it must analyze what is " fair under the circumstances."
The neglect that Lone Star admits occurred was that its counsel did not scrupulously monitor the court's docket to determine when the court entered the judgment. It, instead, relied upon the postal system for notice. The court took that admission into account and decided, in its discretion, that the Pioneer factors weighed in favor of leniency and in favor of granting the extension.
To reverse, we must have a " definite and firm conviction" that the court " committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Marx, 87 F.3d at 1054.
The Ninth Circuit recently held that the weighing of Pioneer's equitable factors is left " to the discretion of the district court in every case." Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004) (en banc). The court specifically refused to create or adopt any rigid per se " legal rule against late filings attributable to any particular type of negligence." Id.
Gurrola sustained no perceived prejudice because the length of the delay was minimal and Lone Star promptly sought relief once it discovered it had missed the ten-day deadline. See Warrick, 278 B.R. at 188 (Klein, J. dissenting).
Thus, under our highly deferential standard of review - abuse of discretion - we are not convinced that the bankruptcy court committed a clear error of judgment.
CONCLUSION
There having been no abuse of discretion in concluding that the motion under Rule 8002(c)(2) to extend time in which to appeal should be granted, we AFFIRM.