Opinion
00 Civ. 7798 (RCC) (THK)
January 24, 2002
OPINION AND ORDER
Appellant Winoc Bogaerts ("Bogaerts") appeals from an order of the United States Bankruptcy Court (Bohanon, J.) dated August 7, 2000, dismissing Bogaerts' claims with prejudice by reason of his failure to comply with certain court directives. Appellee PNL Asset Management, L.P. ("PNL") now moves to dismiss the appeal for lack of jurisdiction on the ground that Bogaerts' Notice of Appeal was untimely. By Report and Recommendation dated September 24, 2001, Magistrate Judge Katz recommended that the motion be granted. Bogaerts thereafter submitted objections to the Report and Recommendation, arguing that the Magistrate Judge erred on two factual issues. For the reasons set forth below, this Court concurs with the conclusion reached by Magistrate Judge Katz and adopts the Report and Recommendation in its entirety.
I. BACKGROUND
The background of this appeal is set forth in detail in the Report and Recommendation and therefore is only briefly recounted herein. Bogaerts and PNL were parties to an adversary proceeding in the United States Bankruptcy Court for the Southern District of New York brought by Appellee E. Donald Shapiro ("Shapiro"), the Chapter 11 Trustee of Litas International, Inc. See In re Litas International, Inc., Case No. 96/8339A (Bankr. S.D.N.Y.). The purpose of the adversary proceeding was to determine the priority of mortgages held by Bogaerts and PNL on certain real property located in Ulster County, New York. See Report and Recommendation at 1-2. Bogaerts, who represented himself pro see in the Bankruptcy Court, failed to produce requested documents or to complete his deposition, and failed to appear at two scheduled court conferences. In response to these delinquencies, PNL filed a motion to compel discovery on June 27, 2000. Bogaerts did not respond to the motion and did not attend the motion hearing. See id. at 2.
On July 12, 2000, Judge Bohanon granted the motion to compel and entered an order, amended later that day, conditionally dismissing all claims and cross-claims asserted by Bogaerts in the bankruptcy proceeding unless four conditions were met. See Amended Order Compelling Disclosure, Sanctioning Dilatory and Evasive Conduct and Granting Related Relief, dated July 12, 2000 (the "Amended Order"). Specifically, in order to avoid dismissal, Judge Bohanon required that Bogaerts (i) produce certain documents by July 31, 2000; (ii) complete his deposition by August 21, 2000; (iii) pay $2, 500 in sanctions by 5:00 p.m. on August 16, 2000; and (iv) deliver a written certification of full compliance with all conditions on or before September 16, 2000. See id. PNL's counsel sent copies of the Amended Order to Bogaerts by certified mail on July 13, 2000 and July 24, 2000, both of which were returned as "unclaimed" by the Postal Service. Report and Recommendation at 3.
Although Bogaerts did not take any action to comply with the Amended Order, Judge Bohanon did not automatically dismiss Bogaerts' claims but instead gave him another chance to fulfill the required conditions. By a supplemental order dated August 7, 2001, Judge Bohanon extended the deadlines, providing that:
[A]ny and all claims or cross-claims of any nature asserted by Winoc Bogaerts in this adversary proceeding shall be dismissed with prejudice without further order of the Court unless Mr. Bogaerts does all of the following: (i) delivers to the offices of [PNL's counsel], no later than August 18, 2000, all documents in his possession custody or control that are responsive to the document request that is addressed to him . . .; (ii) appears at the offices of [PNL's counsel], no later than August 28, 2000, for completion of his deposition; (iii) delivers to [PNL's counsel], no later than 5:00 p.m. on August 16, 2000, a certified check payable to PNL in the sum of $2,500 (the "Sanction Payment") as a sanction for his failure to comply with his duties of disclosure . . .; (iv) delivers to the Court, with a copy to [PNL's counsel], on or before August 18, 2000, written certification, in the form of an affidavit, that he delivered the Sanction Payment . . .; and (v) delivers to the Court, with a copy to [PNL's counsel], on or before August 31, 2000, written certification, in the form of an affidavit, that he had fully complied with all of the provisions of this paragraph . . .
Supplemental Order Compelling Disclosure, Sanctioning Dilatory and Evasive Conduct and Granting Related Relief, dated August 7, 2000 (the "Supplemental Order"). The Supplemental Order also explicitly cautioned that:
[I]n the event Mr. Bogaerts fails to deliver the Sanction Payment to [PNL's counsel] on or before 5:00 p.m. on August 16, 2000 as required in the preceding paragraph, any and all claims or cross claims of any nature asserted by Winoc Bogaerts . . . in this adversary proceeding shall be deemed dismissed with prejudice without further order of the Court, regardless whether Mr. Bogaerts has complied with all of the other provisionsId.
On August 9, 2000, Bogaerts was sent a copy of the Supplemental Order both by first class mail and by overnight mail, and a copy also was affixed to his door. See Report and Recommendation at 4-5. Bogaerts failed to comply with any of the conditions and his claims were dismissed. See id. at 5.
On September 5, 2000, Bogaerts filed the instant appeal. PNL thereafter moved to dismiss the appeal on timeliness grounds. Magistrate Judge Katz, to whom the case was referred, concluded that Bogaerts had not filed his appeal within the 10-day period mandated in F.R.Bankr.P. 8002(a). Magistrate Judge Katz determined that Bogaerts should have appealed the August 7, 2000 Supplemental Order by August 17, 2000, or, at the very latest, by August 27, 2000 — ten days after Bogaerts failed to comply with the deadline for delivering the required sanction payment to PNL's counsel. Report and Recommendation at 9-10. Magistrate Judge Katz also concluded that Bogaerts had failed to make a proper request for an extension of time and that therefore this Court lacked jurisdiction to excuse Bogaerts' delay. Id. at 15-17. The Magistrate Judge therefore recommended that the appeal be dismissed. Id. at 18.
II. DISCUSSION
The district court applies a de novo standard of review to those parts of a Report and Recommendation to which any party objects:
The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
Fed.R.Civ.P. 72(b); see also 28 U.S.C. § 636 (b)(1)(c).
Bogaerts raises two factual objections to the Report and Recommendation. First, Bogaerts claims that he was unaware that he was subject to sanctions until August 24, 2000, when he learned of the Supplemental Order from an attorney. See Affirmation of Dominic S. Rizzo Objecting to Certain Items Contained in the Report Recommendations of Magistrate Theodore H. Katz, dated October 12, 2001 ("Rizzo Aff.") at ¶¶ 3-4. Second, Bogaerts argues that the Supplemental Order was confusing, leading him to believe that he had ten days from the latest date contained in the Order within which to file his appeal. See id. at ¶¶ 5-10. For the reasons set forth below, appellant's objections, even if credited, are largely irrelevant and do not suffice to excuse his delayed filing.
A. Notice of the Sanctions
Magistrate Judge Katz found that Bogaerts "admit[ted] that, before August 1, 2000, he was aware that he was being sanctioned." Report and Recommendation at 14 n. 3. Magistrate Judge Katz based this determination on Bogaerts' Notice of Appeal, which contained the following statements:
6. . . . I have learned . . . that I was being punished for not delivering certain documents.
7. Since I had no documents, other than the assignment of the Note, I continued to look for an attorney to reverse the fines that were imposed ex parte.
8. Then on August 1, 2000, I was notified by the Plaintiff's attorney, Mr. David Cohen, that a status conference will be heard by the U.S. Bankruptcy Court on September 19, 2000.
Notice of Appeal ¶¶ 6-8.
Bogaerts now argues that these paragraphs do not "clearly assert" that he had knowledge of the sanctions. Rizzo Aff. ¶ 4. However, these paragraphs certainly suggest that Bogaerts knew that penalties had been imposed against him, even if perhaps he remained unaware of the exact nature of Judge Bohanon's Amended Order or of the later Supplemental Order.
In any event, Bogaerts' professed ignorance of the conditions imposed by Judge Bohanon, even if credited, does not excuse his untimeliness. As the Magistrate Judge held, "whether or not appellant had notice of the [Supplemental] Order does not affect the validity of the Order, nor the date on which the notice of appeal should have been filed." Report and Recommendation at 13. The Federal Rules of Bankruptcy Procedure make clear that "[I Jack of notice of entry does not affect the time to appeal or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 8002." F.R.Bankr.P. 9022. Moreover, as the Magistrate Judge noted, a party has a duty to appraise himself of developments in his case. See, e.g., In re Sweet Transfer Storage, Inc., 896 F.2d 1189, 1193 (9th Cir. 1990) (noting that parties must monitor the dockets to inform themselves of the entry of bankruptcy orders they may wish to appeal). Magistrate Judge Katz found that Bogaerts failed to exercise any dingence on his own behalf:
Here, appellant failed to appear at court conferences, produce requested discovery, and respond to motions. Thus, he not only failed to monitor his case; he actually absented himself from the litigation and defaulted on his discovery obligations, thereby giving rise to his ignorance of developments in the case. Indeed, the bankruptcy court gave appellant greater latitude than was required . . . Finally, the record indicates that appellant was given notice of the entry of the Supplemental Order by overnight mail and posting on his door by August 8, 2000, and even appellant's own submissions to the Court make clear that he became aware of the existence of the Supplemental Order on August 24, 2000, well within the period allowed for requesting an extension for filing the notice of appeal.
Report and Recommendation at 13-14. Therefore, Bogaerts' contention that he was unaware of Judge Bohanon's orders prior to August 24, 2000, even if assumed true, does not justify his belated Notice of Appeal.
B. Confusion Regarding the Supplemental Order
Because the Supplemental Order contained a number of dates up to and including August 31, 2000, Bogaerts argues that it was "confusing to this pro se litigant as it would appear that his action was not dismissed until August 31, 2001." Rizzo Aff. ¶ 8. However, the Supplemental Order explicitly stated that Bogaerts' claims would be deemed dismissed, regardless of his compliance with any of the other conditions, if he failed to deliver the required sanction payment on or before 5:00 p.m. on August 16, 2000. See Supplemental Order. It is undisputed that Bogaerts did not satisfy this directive. Thus, by the plain terms of the Supplemental Order, his claims were dismissed at that time and the appeals period commenced.
Moreover, if Bogaerts was indeed confused as to the proper deadline for appeal, he should have raised the issue with the Bankruptcy Court at that time and requested an extension. See F.R.Bankr.P. 8002(c). Instead, Bogaerts did not apply for such an extension until January 11, 2001, which the Magistrate Judge properly rejected as clearly untimely. See Report and Recommendation at 16-17. Therefore, Bogaerts' professed confusion does not provide any basis for excusing his untimely Notice of Appeal.
It should be noted that Magistrate Judge Katz viewed Bogaerts' alleged confusion with "great skepticism" because Bogaerts made a number of inconsistent statements regarding the reasons for his untimeliness. Report and Recommendation at 17 n. 5.
III. CONCLUSION
For the foregoing reasons, this Court adopts the Report and Recommendation of Magistrate Judge Katz in its entirety. It is hereby ordered that appellee's motion be granted and that the appeal be dismissed with prejudice. The Clerk of the Court is directed to close this case.