Opinion
No. 7-02-12961 MR, Adversary No. 03-1313 M.
September 28, 2004
R. Trey Arvizu, Las Cruces, NM, Counsel for Defendant.
Ron E. Andazola, Albuquerque, NM, Office of the United States Trustee.
ORDER DENYING MOTION TO EXTEND TIME FOR FILING APPEAL PURSUANT TO BANKR. RULE 8002(c)(2)
THIS MATTER is before the Court on the Motion to Extend Time for Filing Appeal Pursuant to Bankr. Rule 8002(c)(2) ("Motion"), filed by Defendant Sandra R. Eppers, by and through her attorney of record, R. Trey Arvizu. The United States Trustee ("UST"), represented by Ron E. Andazola, opposed the Motion. The facts are not in dispute. Counsel for Defendant miscalculated the deadline for filing a notice of appeal by referencing Rule 6 of the Federal Rules of Civil Procedure, instead of Rule 9006(a) of the Federal Rules of Bankruptcy Procedure when computing the ten-day period for filing a timely notice of appeal in accordance with Rule 8002(a), Fed.R.Bankr.P. Consequently, counsel for Defendant filed his notice of appeal four days after the deadline established by Rules 8002(a) and 9006(a), Fed.R.Bankr.P. Defendant filed the Motion pursuant to Rule 8002(c)(2), Fed.R.Bankr.P., and asserts that the missed deadline was due to "excusable neglect."
Rule 8002(c)(2) provides, in relevant part:
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.
Rule 8002(c), Fed.R.Bankr.P.
The Order Defendant seeks to appeal was entered on July 13, 2004. The deadline for filing a timely notice of appeal pursuant to Rule 8002(a), Fed.R.Bankr.P. was Friday, July 23, 2004. Defendant filed the Motion on August 10, 2004, well after the deadline for filing the notice of appeal, but fewer than twenty days after the expiration of the time for filing a notice of appeal. Thus the Motion was timely filed in accordance with Rul 8002(c).
Counsel for Defendant understood that the deadline for filing a notice of appeal of a final order in a bankruptcy proceeding is ten days pursuant to Rule 8002(a), Fed.R.Bankr.P. However, counsel for Defendant argues that his misapplication of Rule 6, Fed.R.Civ.P., which provides that intermediate Saturdays and Sundays do not get included in the computation of time when the time period is fewer than eleven days, instead of Rule 9006(a), which provides that intermediate Saturdays and Sundays do not get included in the time computation only when the deadline is fewer than eight days, constitutes "excusable neglect" such that his Motion to extend time to file a notice of appeal should be granted.
This Court is bound by recent Tenth Circuit precedent establishing that "misinterpretation of a readily accessible, unambiguous rule" cannot constitute "excusable neglect" within the standard adopted by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). United States v. Torres, 372 F.3d 1159, 1163 (10th Cir. 2004). In Pioneer, the Supreme Court interpreted Rule 9006(a), Fed.R.Bankr.P., and concluded that the determination of excusable neglect "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer, 507 U.S. at 395. The Supreme Court then acknowledged the following four factors the court should consider to determine whether a party's neglect is excusable: "[1] the danger of prejudice to the [nonmoving party], [2] the length of delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith." Pioneer, 507 U.S. at 395, citing In re Pioneer Investment Services Co., 943 F.2d 673, 677 (6th Cir. 1991). The UST concedes that Defendant has satisfied factors one, two and four. Thus the only factor at issue is Defendant's reason for the delay, and whether it was within Defendant's reasonable control.
See Fazio v. Growth Dev. Corp. (In re Growth Dev. Corp.), 168 B.R. 1009, 1015 (Bankr.N.D.Ga. 1994) ("Under the principle of stare decisis, the only precedential authority this Court is bound to follow are those decisions emanating from the . . . Circuit Court of Appeals and the United States Supreme Court.").
U.S. v. Torres cites several cases for the proposition that an attorney's mis-reading of an unambiguous rule can never constitute excusable neglect, including: Weinstock v. Cleary, Gottlieb, Steen Hamilton, 16 F.3d 501, 503 (2nd Cir. 1994) ("`[t]he excusable neglect standard can never be met by a showing of inability or refusal to read and comprehend the plain language of the federal rules.'") (quoting In re Cosmopolitan Aviation Corp., 763 F.2d 507, 515 (2nd Cir. 1985); Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 464 (8th Cir. 2000), cert. den., 531 U.S. 929, 121 S.Ct. 309, 148 L.Ed.2d 248 (2000) ("Notwithstanding the `flexible' Pioneer standard, experienced counsel's misapplication of clear and unambiguous procedural rules cannot excuse his failure to file a timely notice of appeal."); Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 998 (11th Cir. 1997) ("as a matter of law, . . . an attorney's misunderstanding of the plain language of a rule cannot constitute excusable neglect such that a party is relieved of the consequences of failing to comply with a statutory deadline."). Torres, 372 F.3d at 1163. The Court notes that In re Cosmopolitan Aviation Corp., was decided before Pioneer, and subsequent case law in the Second Circuit notes that "per se rules like the one in Cosmopolitan Aviation do not perdure after Pioneer." Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2nd Cir. 1997), cert. den., 522 U.S. 1117, 118 S.Ct. 1055, 140 L.Ed.2d 117 (1998).
Here, counsel for Defendant was aware that the Federal Rules of Bankruptcy Procedure were applicable, and that the deadline for filing a notice of appeal is ten days pursuant to Rule 8002, Fed.R.Bankr.P. But instead of looking to rule 9006(a), Fed.R.Bankr.P. to compute the time, counsel applied Rule 6 of the Federal Rules of Civil Procedure. Had the Federal Rules of Civil Procedure been applicable, his time computation would have been correct. Thus, counsel was capable of reading and applying a clear and unambiguous rule; he just applied the wrong rule. Under the standard established by U.S. v. Torres, 372 F.3d at 1164, where counsel's mis-application of the filing deadlines for civil appeals instead of for criminal appeals did not constitute excusable neglect, counsel's misapplication of Rule 6, Fed.R.Civ.P. in computing the time for filing a timely notice of appeal cannot support a finding of excusable neglect. See also, In re Mizisin, 165 B.R. 834, 835 (Bankr.N.D.Ohio 1994) ("Misunderstanding of the Bankruptcy Code and Rules and heavy workload of counsel do not constitute excusable neglect.").
WHEREFORE, IT IS HEREBY ORDERED, that the Motion to Extend Time for Filing Appeal Pursuant to Bankr. Rule 8002(c)(2) is DENIED.