File Those Bankruptcy Appeals Timely… Or Else!

In re Caterbone, 640 F.3d 108 (3d Cir. 2011). Stanley Caterbone filed a Chapter 11 bankruptcy petition. The Trustee successfully moved to have the petition dismissed on various grounds. The dismissal was entered on October 3, 2006 and the dismissal order was mailed to Caterbone on October 5, 2006. Caterbone sent in a notice of appeal to the District Court, by regular mail and electronic mail, on October 16, 2006, but the notice of appeal was not actually filed with the District Court until October 19, 2006.

At that time, there was a ten-day window to file a notice of appeal, although the rules now provide for a fourteen-day period. The Third Circuit, in an opinion by Judge Barry, held that the time for filing a notice of appeal to a District Court from an order of the Bankruptcy Court is mandatory and jurisdictional, and that Caterbone’s late filing barred any appeal to the District Court or to the Third Circuit.

The court distinguished this case from circumstances in which an appeal deadlines are considered merely “claim-processing rules.” The Third Circuit had previously reached this same conclusion in two non-precedential opinions, but “now [took] the occasion to so hold in a precedential opinion.” Judge Barry cited cases from three other Circuits that had reached this same conclusion.

There are two lessons to be drawn from this ruling. First, counsel or parties who are filing notices of appeal from a Bankruptcy Court to a District Court must recognize that failure to comply with the deadline will doom the appeal. Second, apparently it is not enough even to transmit the notice of appeal in enough time that it could reasonably be expected actually to be filed timely. The date that matters, for deadline purposes, is when the notice of appeal is actually filed with the District Court. Prudence would suggest that notices of appeal be hand-delivered wherever possible, and that a stamped filed copy be obtained by the person making the delivery, in order to evidence filing on the date of delivery.