Opinion
Case No. 98-10301-SSM, Adversary Proceeding No. 99-1002
June 16, 1999
Michael H. Ditton, Esquire, Alexandria, VA, for Plaintiff pro se
James A. Murphy, Esquire, LeClair Ryan, P.C., Richmond, VA, Counsel for defendant Capital One
Robert L. Deichmeister, Esquire, Fagelson, Schonberger, Payne Deichmeister, Fairfax, VA, Counsel for defendant American Express Centurion Bank
C. Thomas Brown, Esquire, Silver Brown, P.C., Fairfax, VA, Counsel for defendant Crestar Bank
Cindra M. Dowd, Esquire, Glasser and Glasser, PLC, Norfolk, VA, Counsel for defendants Bank of America National Trust and Savings Assn. and Federal Home Loan Mortgage Corporation
Carol T. Stone, Esquire, Jordan Coyne Savits, L.L.P., Fairfax, VA, Counsel for defendant United Creditors Alliance
MEMORANDUM OPINION AND ORDER
This matter is before the court on a motion by the plaintiff-debtor to extend the time for filing a notice of appeal with respect to an order dated March 10, 1999, dismissing Count VI of this adversary proceeding. A hearing was held in open court on June 15, 1999. The plaintiff was present and represented himself. Defendants Capital One Financial Corporation and Capital One Services, Inc. (collectively, "Capital One") were present by counsel.
Background
The factual and procedural background of this adversary proceeding is set forth at length in this court's prior memorandum opinion of March 31, 1999, and will not be repeated. Suffice it to note that on March 9, 1999, a hearing was held in open court on a motion by the Capital One defendants to dismiss the two counts (Counts I and VI) with respect to which they are a party. The plaintiff, who is an attorney representing himself, was present in person, and Capital One was present by its attorney. The court orally ruled that Count VI would be dismissed for failure to state a claim for relief, but that Count I would not be dismissed. An order was signed the next day, March 10, 1999, incorporating the bench ruling, and was entered on the docket on March 12, 1999. The clerk's certificate of mailing reflects that a copy of the order was mailed to the plaintiff that date. However, the envelope containing the order was — although properly addressed — inexplicably returned by the U.S. Postal Service with the notation that it was unable to effect delivery. The debtor, in an affidavit filed in support of his motion, states that he did not see a copy of the order until he came into the clerk's office on April 12, 1999, to review the file.
The postage meter imprint, however, reflects a mailing date of March 18, 1999.
In the interim, a hearing had been held on March 23, 1999, on motions to dismiss filed by Crestar Bank, Bank of America National Trust and Savings Association ("Bank of America"), and Federal Home Loan Mortgage Corporation ("Freddie Mac"). The court took the motions under advisement, and on March 31, 1999, issued a memorandum opinion and order dismissing two additional counts (Count V and Count VII) for failure to state a claim for relief but declining to dismiss the two remaining counts (Counts II and VIII) involving those defendants. On April 12, 1999, the plaintiff filed a notice of appeal with respect to the March 23, 1999, order and the March 10, 1999, order. The appeal has been docketed in the United States District Court and apparently a motion has been made to dismiss the appeal of the March 10, 1999, order as untimely. In response, the debtor filed on June 4, 1999, the motion that is presently before the court seeking an extension of the time to file an appeal of the March 10, 1999, order.
Discussion A.
A final order or judgment of a bankruptcy judge may be appealed to the United States District Court for the district in which the bankruptcy judge sits. 28 U.S.C. § 158(a). Additionally, an interlocutory order may be appealed with leave of the District Court. 28 U.S.C. § 158(b). In either event, a notice of appeal must be filed within ten days of the entry of the order or judgment being appealed. F.R.Bankr.P. 8002(a). With certain exceptions not relevant here, the appeal period may be extended by the bankruptcy judge for up to twenty additional days, either for "cause" if the motion to extend is filed before the ten days has run or for "excusable neglect" if it is filed after the ten days has run. F.R.Bankr.P. 8002(c). In any event, it is clear from the language of the rule that the motion to extend the time for appeal cannot be filed later than thirty days from the entry of the order to be appealed:
(2) A request to extend the time for filing a notice of appeal must be made by written motion filed before the time for filing a notice of appeal has expired, except that such a motion filed not later than 20 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect. An extension of time for filing a notice of appeal may not exceed 20 days from the expiration of the time for filing a notice of appeal, otherwise prescribed by this rule or 10 days from the date of entry of the order granting the motion, whichever is later.
F.R.Bankr.P. 8002(c)(2) (emphasis added).
In the present case, although the notice of appeal was filed on the 31st day after the date the March 10, 1999, order was entered on the docket, the motion to extend the time for appeal was not filed until 84 days after entry of the order. Thus, Rule 8002(c) provides no authority for the court to extend the time for appeal beyond the ten-day period otherwise provided by Rule 8002(a) regardless of whether the plaintiff's failure to receive a copy of the March 10, 1999, order would otherwise have constituted excusable neglect justifying an extension of the time to appeal.
Had the motion to extend time been filed on April 12, 1999 (the date the notice of appeal was filed), it would have been timely, since the 30th day after entry of the March 10th order was a Sunday. See F.R.Bankr.P. 9006(a). The court declines the plaintiff's suggestion that it treat the notice of appeal as a motion to extend time for appeal. In re R. H. Macy Co., 173 B.R. 301, 302 (S.D. N.Y. 1994); see also Campos v. LeFevre, 825 F.2d 671, 673 (2d Cir. 1987) (noting that First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits had all construed similar language of Federal Rule of Appellate Procedure 4(a)(5) as barring a District Court from treating a notice of appeal as a motion to extend time to appeal).
B.
The plaintiff requests, in the alternative, that the court grant relief from the March 10, 1999, order under Federal Rule of Civil Procedure 60(b), as incorporated by Federal Rule of Bankruptcy Procedure 9024, so as to preserve his right of appeal. Rule 60(b) allows a court to grant relief from a final judgment on a number of grounds, including mistake, inadvertence, and fraud on the court. As explained by the Fourth Circuit, a party seeking relief from an order or judgment under Rule 60(b) must make a threshold showing of "timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and exceptional circumstances." Dowell v. State Farm Casualty Automobile Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993). Even assuming that Rule 60(b) can be used to circumvent the strict time limitations of Rule 8002, this is not a case in which such relief would be appropriate. First, the court cannot find that the issue to be argued on appeal has substantial merit or involves an important issue affecting the public interest. Second, the mere failure to receive a copy of the order dismissing Count VI can hardly constitute "exceptional circumstances" when the plaintiff was present in court when the ruling was made. Indeed, Federal Rule of Bankruptcy Procedure 9022(a) expressly provides, "Lack of notice of the entry [of an order] 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" (emphasis added).
Since an appeal from the order is pending before the District Court, this court's power to decree relief under Rule 60(b) is limited. As explained recently by the Fourth Circuit, a trial court retains jurisdiction to entertain a Rule 60(b) motion even when the underlying judgment is on appeal. If the lower court determines that the motion is meritless, it should deny the motion forthwith. However, if the lower court is inclined to grant the motion, it should issue a short memorandum so stating; the party seeking relief can then request a limited remand from the appellate court for that purpose. Fobian v. Storage Tech. Corp., 164 F.3d 887 (4th Cir. 1999).
While a notice of appeal filed "after the announcement of a decision but before entry of the order" is conceptually premature, no prejudice can result to the appellant, since Rule 8002(a) treats such a notice of appeal "as filed after such entry and on the date thereof." Thus, there was no need for the plaintiff to wait until formal entry of the order reflecting the bench ruling before filing his notice of appeal.
Finally, a denial of the present motion does not jeopardize the plaintiff's ability ultimately to obtain appellate review of the ruling dismissing Count VI. That count, after all, was only one of several counts, and four counts remain before the court for determination even after the orders dismissing Counts V, VI, and VI. Under Federal Rule of Civil Procedure 54(b), as incorporated by Federal Rule of Bankruptcy Procedure 7054, an order disposing of "one or more but fewer than all of the claims or parties" is not a final judgment unless the court expressly so directs "upon an express determination that there is no just reason for delay." In the absence of such determination and direction, "any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties[.]" Id. (emphasis added). The order of March 10, 1999, contained no such determination and direction and is therefore not a final order. This does not necessarily bar an appeal, since the District Court has discretion under 28 U.S.C. § 158(b) to hear an interlocutory appeal; but at the same time, the failure to take an interlocutory appeal of the order dismissing Count VI would not foreclose an appeal at the time a final judgment is entered. Thus, at most, the plaintiff has lost the right only to have his appeal heard on an interlocutory basis. This is hardly the type of plain prejudice for which Rule 60 relief is appropriate.
ORDER
For the foregoing reasons, it is
ORDERED:
1. The motion to extend the time to file a notice of appeal is denied.
2. The clerk will mail a copy of this order to the parties listed below.