Opinion
CASE NO. 03-CV-0485-K (NLS)
May 30, 2003
ORDER GRANTING MOTION TO DISMISS AS TO APPELLEE EDUCATIONAL CREDIT MANAGEMENT CORPORATION.
On April 17, 2003, appellee Educational Credit Management Corporation ("ECMC") filed a motion to dismiss contending that this court has no jurisdiction over the instant bankruptcy appeal because appellant, Douglas Crawford, filed an untimely notice of appeal. In response, on April 18, 2003, appellant Crawford filed a motion to enlarge time in which to file a notice of bankruptcy appeal ("motion to enlarge time"). Subsequently, Crawford also filed an opposition to ECMC's motion to dismiss on May 12, 2002, contending that his motion to enlarge time warranted denial of ECMC's motion to dismiss. ECMC responded by filing an opposition to Crawford's motion to enlarge time. Both parties have filed their respective replies to the motion to dismiss and motion to enlarge time. Appellant Crawford, an attorney, represents himself, and appellee ECMC is represented by counsel.
I. Background
The following is taken from the pleadings and is not to be construed as findings of fact by the court.
On February 12, 2003, Judge John J. Hargrove of the U.S. Bankruptcy Court issued an order declaring appellant Crawford's student loans nondischargeable under 11 U.S.C. § 523 (a)(8) and entered judgment for ECMC. See motion to enlarge at 1-2. On March 4, 2003, seeking to appeal the Bankruptcy Court's judgment for ECMC, appellant Crawford filed a Notice of Appeal and Election to Transfer Appeal to U.S. District Court. See id. at 2.
Presently, appellee ECMC asks the court to dismiss the instant appeal against itself for lack of jurisdiction. See motion to dismiss at 4. According to ECMC, under the Federal Rules of Bankruptcy Procedure, plaintiffs notice of appeal had to be filed within ten days from the date of entry of the bankruptcy order, but plaintiff filed his notice of appeal twenty days after judgment was entered on behalf of ECMC. See id. ECMC contends that this court does not have jurisdiction over a bankruptcy appeal where the notice of appeal was not filed in timely accordance with Federal Rule of Bankruptcy Procedure 8002. See id.
II. Applicable Law
The Federal Rules of Bankruptcy Procedure ("F.R.B.P.") mandates that a notice of appeal must be filed within ten days of the entry of the order being appealed. Federal Rule of Bankruptcy Procedure 8002 sets forth in relevant part:
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 . . .
F.R.B.P. 8002(a). Federal Rule of Bankruptcy Procedure 8002 also sets forth the conditions under which an appellant may request an extension of time in which to file the notice of appeal:
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.
The Federal Rules of Bankruptcy Procedure in Rule 9006 allows for a court to use its discretion to enlarge the period of time for filing a notice of appeal as exposited in Rule 8002. Federal Rule of Bankruptcy Procedure 9006(b) states in pertinent part:
(1) In general
Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
(2) Enlargement not permitted
The court may not enlarge the time for taking action under Rules 1007(d), 2003(a) and (d), 7052, 9023, and 9024.
(3) Enlargement limited
The court may enlarge the time for taking action under Rules 1006(b)(2), 1017(e), 3002(c), 4003(b), 4004(a), 4007(c), 8002, and 9033, only to the extent and under the conditions stated in those rules.
III. Discussion
A. Parties' arguments
Appellant Crawford admits that his notice of appeal filed on March 4, 2003, was untimely. See motion to enlarge at 3. However, in order to make the filing timely, Crawford asks the court to grant him an extension of time for filing his notice of appeal under Federal Rule of Bankruptcy Procedure 9006(b). See id. at 2-4. He contends that this court can extend time due to his excusable neglect because the ten-day delay was reasonably short and there is little prejudice to the appellants and no impact on the judicial proceedings because of the brevity of the delay. See id. at 3-4, quoting Pioneer Investment Services v. Brunswick Assoc., Ltd., 507 U.S. 380, 396 (1993) (setting forth the standard for determining excusable neglect). Moreover, Crawford states that there was no bad intent on his part for the delay. See motion to enlarge at 3. Rather, appellant accepts responsibility for the delay and explains that he has limited legal experience, has never been untimely in other court actions, and explicates that the delay was caused by his failure "to travel to the San Diego County Law Library to complete the research and find the hard and fast rule" regarding the time limit for filing an appeal in a bankruptcy case. Id.
Appellee ECMC counters that although the court has discretion to enlarge the amount of time for filing a notice of appeal under Federal Rules of Bankruptcy Procedure 9006, the court's discretion is limited by the conditions for enlargement of time set forth in Rule 8002. See appellee's reply to appellant's opposition to motion to dismiss at 4. Specifically, ECMC points out that Rule 8002 allows the court to enlarge time based on excusable neglect only where the appellant has filed a motion to enlarge time not later than twenty days after the deadline for filing a notice of appeal. See id..
B. Analysis
Although the court's discretion to enlarge time under Rule 9006(b)(1) is limited by subsection (b)(3), appellant Crawford does not address this limitation. Subsection (b)(1) of Rule 9006 states that the court has discretion to enlarge time for deadlines set in Rule 8002. See F.R.B.P. 9006(b)(1). However, subsection (b)(3) of Rule 9006 limits this discretion by stating that the court must follow the conditions for enlargements of time exposited in Rule 8002. See F.R.B.P. 9006(b)(3). So, in granting an enlargement of time under Rule 9006, this court must look to the content of Rule 8002. Federal Rule of Bankruptcy Procedure 8002 sets forth that the court may grant motions for enlargement of time due to excusable neglect if the motion to enlarge was filed not later than 20 days after the expiration of the time for filing a notice of appeal. See F.R.B.P. 8002(c)(2). The deadline for appellant Crawford to file a notice of appeal was February 22, 2003, because judgment was entered against ECMC on February 12, 2003. See F.R.B.P. 8002(a) (setting forth that notice of appeal must be filed within ten days after judgment is entered). Consequently, under Rules 8002(c)(2) and 9006(b)(3), appellant was required to file a motion for enlargement of time by March 14, 2003, but appellant Crawford did not meet this deadline because he filed his motion for enlargement of time on April 18, 2003. Therefore, this court FINDS that it has no discretion under Rule 8002 and Rule 9006 to grant appellant's motion for enlargement of time to file his notice of appeal. The court's finding that it has no discretion is supported by the fact that appellant Crawford does not provide any Federal rule or case law indicating that this court has discretion regardless of the conditions for enlargement of time exposited in Rule 8002(c)(2) and Rule 9006(b)(3).
IV. Conclusion
Based on the foregoing, the court DENIES appellant Crawford's motion to enlarge the time for filing a notice of appeal against defendant ECMC. Hence, because appellant Crawford's notice of appeal was untimely, the court GRANTS appellee ECMC's motion to dismiss for lack of jurisdiction.See In re Joseph C. Souza, 795 F.2d 855, 858 (9th Cir. 1986) (stating that district court does not have jurisdiction over a bankruptcy appeal where the notice of appeal was not timely filed under Federal Rule of Bankruptcy Procedure 8002). This means that the instant bankruptcy appeal is dismissed for lack of jurisdiction as to appellee Educational Credit Management Corporation.