Opinion
Case No. 98-25304 (District of Connecticut), Adversary Proceeding No. 99-1021
May 6, 1999
A. Ann Berkebile, Esquire, Richmond, VA, of Counsel for defendants
Robert S. Corish, Esquire, Brandt, Jennings, Roberts, Davis Snee, PLLC, Falls Church, VA, of Counsel for defendants
MEMORANDUM OPINION AND ORDER
Before the court is the plaintiffs motion for leave to file a late notice of appeal and his request that the clerk transmit, as the record on appeal, the original papers in this adversary proceeding.
Background
This is an action by a chapter 13 debtor seeking declaratory and monetary relief against two state court judges, the clerk of a state court, a sheriff, and a deputy sheriff for alleged violations of the automatic stay. On April 5, 1999, this court entered an order dismissing the complaint for the reasons set forth in a written memorandum opinion filed with the order. On May 4, 1999, the debtor filed the motion that is presently before the court to extend the time for filing a late notice of appeal. With the motion, he filed a combined notice of appeal, designation of record on appeal, and statement of issues on appeal in which he designated "the entire record" and requested that "the original papers" be transmitted to the district court and that he be excused from furnishing the clerk with copies. He did not pay the filing fee for the appeal as required by F.R.Bankr.P. 8001(a)(3).
A supplement to the memorandum opinion was filed on April 22, 1999.
The notice of appeal does not set forth, as required by F.R.Bankr.P. 8001(a)(2), "the names of all parties to the judgment, order, or decree appealed from and the names, addresses and telephone numbers of their respective attorneys."
Discussion
Under 28 U.S.C. § 158(a), final orders and judgments of this court may be appealed to the United States District Court for this district. The notice of appeal must be filed within ten days of the entry of the judgment or order on the docket. F.R.Bankr.P. 8002(a). With certain exceptions not relevant here, that time may be extended by the bankruptcy court up to an additional twenty days for "cause" if the motion to extend is made before the original ten days has expired, and for "excusable neglect" if the motion is made after the ten days has expired. F.R.Bankr.P. 8002(c)(2). Since the motion to extend in this case was filed on the 29th day after entry of the order, the extension may be granted only on a showing of excusable neglect. In Pioneer Investment Svcs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Supreme Court held that the "excusable neglect" standard permitted bankruptcy courts to accept late filings caused by inadvertence, mistake, or carelessness, and was not limited to intervening circumstances beyond a party's control. The Court further explained that the determination of whether neglect is "excusable" is an equitable one, taking into account all relevant circumstances. These include the danger of prejudice to the opposing party, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. Id. at 394, 113 S.Ct. at 1498. See Huennekens v. Marx (In re Springfield Contracting Corp), 156 B.R. 761 (Bankr. E.D. Va. 1993) (denying motion to extend time for appeal); Rozich v. Cruey (In re Cruey), 158 B.R. 66 (Bankr. W.D. Va. 1993), aff'd 37 F.3d 1493 (4th Cir. 1994) (table).
Since the Fourth Circuit has not established a bankruptcy appellate panel, the option set forth in the statute of appealing to such a panel is not available.
In his motion to extend, the plaintiff states that the notice of appeal was not timely filed because he had been out of town caring for his ill mother, with the result that mail (including, presumably, a copy of this court's memorandum opinion and order) had been delayed in reaching him. Significantly, the motion does not state (a) what date he actually received the order and memorandum opinion or (b) what dates he was absent from the address shown on his pleadings. Be that as it may, there is a more fundamental reason why this court cannot find excusable neglect. As noted above, one of the elements of excusable neglect is that the movant acted in good faith. In the present case, the primary reason for the dismissal of the complaint was the debtor's failure to comply with the requirements of an injunction — which was based on a finding that the plaintiff had a history of filing vexatious and harassing lawsuits — requiring that the plaintiff obtain leave of the forum court prior to commencing an action in Federal court. The plaintiff made no attempt whatsoever to comply with that requirement. Considering also that the chapter 13 case that is the predicate of his action has itself been dismissed and that the plaintiff has not even paid the filing fee for the appeal, the court is unable to find that plaintiff has acted in good faith. Accordingly, the court declines to extend the time to file a notice of appeal.
Even though the notice of appeal is out of time, this court has no authority to dismiss the appeal, and such action, if appropriate, may only be taken by the District Court. No good cause has been shown to waive the requirement of Rule 8006 that the appellant furnish the clerk with copies of all portions of the record he has designated, and the request that such requirement be waived and the original papers be transmitted as the record on appeal is denied. Nevertheless, Rule 8006 requires the clerk to make copies of the items designated if the party making the designation does not supply them. Accordingly, the clerk will, after the expiration of the periods specified in Rule 8006, transmit to the clerk of the District Court (a) a copy of the memorandum opinion and order of April 5, 1999; (b) a copy of the supplement to memorandum opinion filed April 22, 1999; (c) a copy of the notice of appeal, specification of issues on appeal, and designation of record on appeal; (d) a copy of this memorandum opinion; (e) a copy of the docket entries for this adversary proceedings; (f) a certification as to whether the appellant has paid the filing fee; (g) copies — the cost of which shall be billed to the appellant, unless he furnishes them within ten days of the entry of this order — of the remaining papers filed in this adversary proceeding; and (h) a certification as to any unpaid charges for copies prepared by the clerk.
ORDER
For the foregoing reasons, it is
ORDERED:
1. The motion to extend time to file a notice of appeal is denied.
2. The request for waiver of the requirement to furnish copies and to transmit the original papers as the record on appeal is denied.
3. The clerk shall mail a copy of this order to the parties listed below.