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stating that district court could dismiss bankruptcy appeal for failure to pay filing fee
Summary of this case from Rahmi v. SheehanOpinion
No. 5:03-CV-794-FL(3).
November 14, 2003
ORDER
Jerome Paul Reimann, appearing pro se, seeks to appeal from the July 28, 2003 final decree entered by the bankruptcy court in Case No. 01-01319-5-ATG, closing the case. In the form of a submission denominated "Motion in Opposition to Order Denying Show Cause and Venue Change Orders," Reimann argues perceived irregularities in procedures undertaken by the trustee, relating to a state court lawsuit and her alleged abandonment of this property in 2001, and in procedures undertaken by the bankruptcy clerk of court subsequent to entry of the final decree, allegedly delaying the filing of Reimann's appeal paperwork until August 25, 2003. On these grounds, Reimann protests the court's October 14, 2003 order denying his motion filed September 2, 2003 to show cause, and Reimann's request to transfer the case to the Southern District of Ohio, in which he now resides.
The time for filing an appeal with respect to the final decree entered on July 28, 2003 expired August 7, 2003. FED.R.BANKR.P. 8002(a). Pursuant to his own affidavit, Reimann became aware of the final decree on August 4, 2003, and did not attempt to undertake an appeal until August 8, 2003, when he mailed the notice of appeal to the clerk for filing. While 28 U.S.C. § 158(a)(1) provides that district courts have jurisdiction "to hear appeals from final judgments, orders, and decrees" issued by the bankruptcy court, the Federal Rules of Bankruptcy Procedure require the appealing party to file a motion for leave to appeal within the ten-day period after issuance of the order. FED. R. BANKR. P. 8002(a).
Because a notice of appeal was not timely filed under Rule 8002(a), this court is without jurisdiction to hear any appeal. Courts construe Rule 8002(a)'s ten-day time limit strictly.Smith v. Dairymen, Inc., 790 F.2d 1107, 1109 (4th Cir. 1986);Starcher v. IRS, 255 B.R. 292, 293 (S.D.W. Va. 2000). The ten-day rule is jurisdictional, and the district court does not have subject matter jurisdiction to hear an appeal if the potential appellant has not invoked the district court's jurisdiction by a timely notice of appeal. Ballard v. Tamojira, Inc., No. 96-1745, 1997 U.S. App. LEXIS 1468, at *1 (4th Cir. Jan. 23, 1997) (appeal held properly dismissed where notice of appeal filed five days after expiration of the deadline);Smith, 790 F.2d 1107, 1109 (district court is without jurisdiction to review the bankruptcy court's order where notice of appeal not timely filed). See also In re LBL Sports Center, Inc., 684 F.2d 410, 412-13 (6th Cir. 1982) (where two-day delay was at issue, burden of any delay in the mail falls upon the appellant and bankruptcy court's judgment was final and unappealable).
Moreover, under the Federal Rules of Bankruptcy Procedure, an appellant's notice of appeal must "be accompanied by the prescribed fee." FED. R. BANKR. P. 8001(a). See also 28 U.S.C. § 1930. Reimann failed to pay the $105.00 filing fee as required by Rule 8001(a). The record reveals that the outstanding fee was brought to his attention, and Reimann refused to correct his error by paying the fee. Failure to conform with procedural specifications for notices of appeals may result in dismissal of the appeal if the district court deems such action appropriate. FED. R. BANKR. P. 8001(a).
Where the bankruptcy court entered its final decree on July 28, 2003, and no notice of appeal was filed upon expiration of the ten-day appeal period, Reimann, who swears to knowledge of the final decree on August 4, 2003, cannot rely on the 2001 course of developments described in the record pertaining to treatment of his state court lawsuit, nor on a certificate of service that shows placement of the final decree in the United States mail for service on a Sunday, to except this case from the requirement of Rule 8002(a), FED. R. BANKR. P., that the notice of appeal be filed by August 7, 2003. Reimann's appeal, unaccompanied by the requisite filing fee, is therefore DISMISSED. Reimann's motion in opposition to the October 14, 2003 order of the bankruptcy court is DENIED as MOOT.
SO ORDERED.