Opinion
1:03-CV-01404 (GLS) (LEAD), 1:03-CV-01406 (GLS) (MEMBER).
February 16, 2005
ROBERT E. HARRIS, ESQ., Office of Robert E. Harris, Albany, NY, for the Appellant.
MICHAEL C. LYNCH, ESQ., TONIA L. SUMMERS, ESQ., Office of Albany County Attorney, Albany, NY, for the Appellee.
MARK SWIMELAR, Pro Se, Syracuse, NY, for the Trustee.
DECISION AND ORDER
I. Introduction
On June 14, 2004, this court issued an order and entered judgment dismissing Appellant Robert Harris's bankruptcy appeals. Dkt. Nos. 23, 24. On June 25, Harris filed a "motion to reargue, reconsider and refile [sic] an appeal and to expand the record on appeal." Dkt. No. 26. On July 9, 2004, Harris filed a notice appealing the court's June 14 disposition to the Second Circuit Court of Appeals. Dkt. No. 27. Following certification and transmission of the index to the record on appeal, and the receipt of the docketing notice from the Court of Appeals, Dkt. No. 29, this court initially deemed the case closed pending the subject appeal.
The Appellee's response was due by July 19, 2004. Dkt. No. 26. On July 28, Appellee's counsel inquired, inter alia, about an opportunity to file a response late. Counsel was advised to submit a written request seeking permission to file such response, but has not done so. The court addresses the pending motion on Harris's submission only. In light of the present disposition, opposition papers would be unnecessary.
See N.Y. State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1349-50 (2d Cir. 1989), cert. denied, 495 U.S. 947 (1990). The court notes, however, that it would be allowed to entertain and deny a motion under Rule 60(b) of the Federal Rules of Civil Procedure while an appeal is pending before the Court of Appeals. King v. First Am. Investigations, Inc., 287 F.3d 91, 94 (2d Cir. 2002) (quoting Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992)).
However, upon review, Rule 6(b)(2)(A)(i) of the Federal Rules of Appellate Procedure provides that "[a] notice of appeal filed after the district court . . . enters a judgment, order, or decree — but before disposition of the motion for rehearing — becomes effective when the order disposing of the motion for rehearing is entered." The court concludes that it retains jurisdiction over the case insofar as Harris's notice of appeal is ineffective pending disposition of the present motion. For the following reasons, Harris's motion is denied.
The proper designation of Harris's motion is addressed in part II infra.
II. Discussion
Harris essentially seeks reconsideration of this court's June 14 Order. He has styled his motion as one for relief under Rules 59 and 60 of the Federal Rules of Civil Procedure ( Fed.R.Civ.P.), as made applicable to bankruptcy proceedings by Rules 9023 and 9024 of the Federal Rules of Bankruptcy Procedure, respectively. Fed.R.Bankr.P. 9023, 9024.
Harris's papers do not cite the specific sections of these Rules upon which he relies.
In bankruptcy cases, appeals to district courts are governed by Part VIII of the Federal Rules of Bankruptcy Procedure. Fed.R.Bankr.P. 8001-8020. Part VIII does not incorporate either Fed.R.Civ.P. 59 or 60. Moreover, Fed.R.Civ.P. 81(a) proscribes use of the Federal Rules of Civil Procedure to bankruptcy proceedings unless they are specifically made applicable by the Supreme Court. Aycock v. Eaton (Matter of Eichelberger), 943 F.2d 536, 538 n. 3 (5th Cir. 1991); In Re Akros Installations, Inc., 834 F.2d 1526, 1531 (9th Cir. 1987), superseded on other grounds by rule as stated in In re Roete, 936 F.2d 963, 966-67 (7th Cir. 1991); In re Singer Co. N.V., 2002 WL 10452, at *2 (S.D.N.Y. Jan. 3, 2002).
Although Rules 59 and 60 are made applicable to cases under the Bankruptcy Code, their application has been found to be limited. Courts specifically addressing the issue have held that Rules 59 and 60 apply to judgments or orders of the bankruptcy court, but are inapplicable to judgments or orders of a district court sitting in an appellate capacity. Butler v. Merchs. Bank Trust Co. (Matter of Butler), 2 F.3d 154, 155 (5th Cir. 1993) (Rule 59); Matter of Eichelberger, 943 F.2d at 538-39 (Rule 59); In re Brenner, 1991 WL 239942, at *1-2 (E.D.Pa. Nov. 8, 1991) (Rules 59 and 60); In re Conn Aire, Inc., 91 B.R. 462, 462 n. 2 (M.D.Tenn. 1988) (Rule 60); In re Shiflett, 1988 WL 62508, at *1 (D.Md. June 9, 1988) (Rule 60); see also English-Speaking Union v. Johnson, 353 F.3d 1013, 1019 (D.C. Cir. 2004) (discussing rationales in support while declining to resolve issue). The Fifth Circuit has squarely held that Bankruptcy Rule 8015 provides the only means for challenging bankruptcy appellate dispositions by district courts: "When the district court is acting as an appellate court in a bankruptcy case, 'Bankruptcy Rule 8015 provides the sole mechanism for filing a motion for rehearing.'" Matter of Butler, 2 F.3d at 155 (quoting Matter of Eichelberger, 943 F.2d at 538); see also Matter of Eichelberger, 943 F.2d at 539-40 (citation omitted). Therefore, the court will treat Harris's request for relief as a motion for rehearing under Bankruptcy Rule 8015.
Under Bankruptcy Rule 8015, a motion for rehearing must be filed within ten days after entry of judgment by the district court, unless a court's order or local rules provide otherwise. Fed.R.Bankr.P. 8015. Although this District's Local Rules governing bankruptcy appeals contain no specific provisions regulating the timing of Rule 8015 motions, see N.Y.N.D.L.R. 76.1-76.3, Local Rule 7.1 (governing motion practice in general) sets a 10-day filing requirement for motions for reconsideration and rehearing. L.R. 7.1(g). Thus, under either Bankruptcy Rule 8015 or Local Rule 7.1(g), a motion for reconsideration or rehearing must be filed within ten days of entry of judgment.
Under Fed.R.Bankr.P. 8015:
Unless the district court or the bankruptcy appellate panel by local rule or by court order otherwise provides, a motion for rehearing may be filed within 10 days after entry of the judgment of the district court or the bankruptcy appellate panel. If a timely motion for rehearing is filed, the time for appeal to the court of appeals for all parties shall run from the entry of the order denying rehearing or the entry of a subsequent judgment.
Local Rule 76.2(c) provides, in relevant part, that "[a]ppeals from a decision of the bankruptcy court shall be in accordance with 28 U.S.C. § 158 and applicable bankruptcy rules."
It is well established that the computation of time periods in bankruptcy proceedings is governed by Fed.R.Bankr.P. 9006(a). Williams v. EMC Mortgage Corp. (In re Williams), 216 F.3d 1295, 1297 n. 3 (11th Cir. 2000); Matter of Eichelberger, 943 F.2d at 539; In re Singer Co. N.V., 2002 WL 10452 at *1 (collecting cases). Under Rule 9006(a), when the time prescribed is more than eight days, the day of the act or event (here, entry of judgment) is excluded; intermediate Saturdays, Sundays and legal holidays are included; and the last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or a day in which the clerk's office is inaccessible due to weather or other conditions. Fed.R.Bankr.P. 9006(a). With the above in mind, the court turns to the timeliness of Harris's motion.
Fed.R.Bankr.P. 9006(a) provides, in relevant part:
In computing any period of time prescribed or allowed by these rules or by the Federal Rules of Civil Procedure made applicable by these rules, by the local rules, by order of court, or by any applicable statute, the day of the act, event, or default 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, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the clerk's office inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 8 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.
The judgment of dismissal was entered on Monday, June 14, 2004. Dkt. No. 24. Excluding June 14, and including the intermediate Saturday and Sunday (there were no legal holidays), as well the last day of the ten-day computation, Harris's motion was due no later than Thursday, June 24, 2004, which was neither a legal holiday, nor a day in which the clerk's office was inaccessible. Here, Harris filed his motion on Friday, June 25, 2004, eleven days after entry of the judgment dismissing his appeal, and one day after the applicable deadline. Harris made no request for extension prior to expiration of the deadline, nor did he provide in his motion papers any facts or argument that would justify accepting his late filing based on excusable neglect under Bankruptcy Rule 9006(b)(1). See generally Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380 (1993). Therefore, based on the above, Harris's motion is hereby DENIED as untimely.
WHEREFORE, it is hereby
ORDERED that appellant's motion is DENIED; it is further
ORDERED that the Clerk serve a copy of this Decision and Order upon the parties; and it is further
ORDERED that the Clerk provide a copy of this Decision and Order to the Court of Appeals.
IT IS SO ORDERED.