Opinion
Case No. 06-30008 (JFK), Case No. 06-30009 (JFK), Case No. 07-30012 (JFK), Civil Nos. 2009-47, 2009-48.
April 29, 2009
Michael J. Lichtenstein, Esq., Rockville, MD, For Jeffrey J. Prosser. Robert F. Craig, Esq., Omaha, NE, For Jeffrey J. Prosser. Thomas Alkon, Esq., St. Croix, U.S.V.I., For Jeffrey J. Prosser. A. Jeffrey Weiss, Esq., St. Thomas, U.S.V.I., For Jeffrey J. Prosser. Bernard C. Pattie, Esq., St. Croix, U.S.V.I., For James P. Carroll, Chapter 7 Trustee. Yann Geron, Esq., Samuel H. Israel, Esq., Fred Stevens, Esq., Eric E. Reed, Esq., New York, NY, For James P. Carroll, Chapter 7 Trustee. Cardinal P. Connor, Pro se appellant. Benjamin A. Currence, Esq., St. Thomas, U.S.V.I., For Stan Springel, Chapter 11 Trustee and Innovative Communication Company, LLC, and Innovative Communication Corporation. Daniel C. Stewart, Esq., Thomas S. Leatherbury, Esq., Michaela C. Crocker, Esq., Dallas, TX, For Stan Springel, Chapter 11 Trustee and Innovative Communication Company, LLC, and Innovative Communication Corporation. Richard H. Dollison, Esq., St. Thomas, U.S.V.I., For Greenlight Capital Qualified, L.P., Greenlight Capital, L.P., and Greenlight Capital Offshore, Ltd. Thomas J. Allingham II, Esq., Wilmington, DE, For Greenlight Capital Qualified, L.P., Greenlight Capital, L.P., and Greenlight Capital Offshore, Ltd.
ORDER
Cardinal P. Connor appeals from the Bankruptcy Court's order denying without prejudice the motion of certain pensioners to appear in the above-captioned bankruptcy cases. Stan Springel, Chapter 11 Trustee ("Springel"), has moved to dismiss this appeal for lack of jurisdiction. The motion is unopposed. Springel argues that Connor's appeal is untimely and that the subject of the appeal is moot.
Connor is appearing pro se.
On April 9, 2009, the Court ordered Connor to file his opposition to the motion no later than April 17, 2009. Connor has failed to do so.
Pursuant to Federal Rule of Bankruptcy Procedure 8002(a), a notice of appeal must be filed within ten days of the judgment or order being appealed. Fed.R.Bankr.P. 8002(a) ("The notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from."); see also Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997) (noting that "[t]his deadline is strictly construed"); In re Universal Minerals, Inc., 755 F.2d 309, 311 (3d Cir. 1985) (stating that Rule 8002(a) requires "strict compliance with its terms"). "The failure to file a timely notice of appeal [from the Bankruptcy Court's order] creates a jurisdictional defect barring appellate review." Shareholders, 109 F.3d at 879.
Here, the order from which Connor appeals was entered on the Bankruptcy Court's docket on May 2, 2008. Connor filed his notice of appeal in March 2009, more than ten months after the Bankruptcy Court's order was entered. As such, the appeal is untimely and this Court lacks jurisdiction to hear it. See, e.g., Amer Metrocomm Corp. v. Abrams (In re Amer Metrocomm Corp.), 196 Fed. Appx. 86, 87 (3d Cir. 2006) (not precedential); In re Smith, 189 Fed. Appx. 88, 90 (3d Cir. 2006) (not precedential); In re Allegheny Health, Ed. Research Found., 181 Fed. Appx. 289, 291 (3d Cir. 2006) (not precedential); In re Universal Minerals, 755 F.2d at 312 ("In the present case, the ten-day period for filing a notice of appeal . . . began on March 20, 1984, and ended on March 29, 1984. [The] notice of appeal, filed on April 2, 1984, was clearly out of time." (internal citations and footnote omitted)).
Rule 8002(c) allows a bankruptcy judge to "extend the time for filing the notice of appeal by any party." Fed.R.Bankr.P. 8002(c)(1). However, a party must make a request for an extension under this rule "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 such a notice of appeal may be granted upon a showing of excusable neglect." Fed.R.Bankr.P. 8002(c)(2). The rule allows for an extension of no more than 20 days. Id.
Here, there is no evidence in the record that Connor asked the Bankruptcy Court for additional time to file his notice of appeal or that the Bankruptcy Court granted such relief. In any event, Connor's notice of appeal was filed well beyond any possible extension.
Connor's pro se status does not excuse him from the obligation to file a timely notice of appeal. See Poole v. Family Court, 368 F.3d 263, 266-69 (3d Cir. 2004).
The premises considered, it is hereby
Because dismissal on untimeliness grounds is appropriate, the Court need not reach Springel's argument that this appeal is moot.
ORDERED that the motion to dismiss is GRANTED and that this matter is DISMISSED; it is further
ORDERED that all pending motions are DENIED as moot; and it is further
ORDERED that the Clerk of Court shall close this case.