UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eva Marie Stilkey

v. Civil No. 17-cv-337-LM Opinion No.

Alexander Marsters

O R D E R

This appeal from bankruptcy court arises from an adversary

complaint filed by the creditor, Eva Marie Stilkey, to determine

the dischargeability of a debt—namely, a judgment that Stilkey

obtained in state court against the debtor, Alexander Marsters.

The U.S. Bankruptcy Court for the District of New Hampshire

(Deasy, J.) granted Marsters’ motion to dismiss the adversary

complaint, and thereafter denied Stilkey’s motion for

reconsideration. After the period to appeal expired, Stilkey

filed an untimely notice of appeal from these decisions and a

motion to extend the appeal period. Concluding that Stilkey had

not demonstrated “excusable neglect” under Federal Rule of

Bankruptcy Procedure 8002(d)(1)(B), the bankruptcy court denied

the motion to extend and dismissed her notice of appeal.

Stilkey now appeals the bankruptcy court’s orders denying the motion to extend and dismissing her notice of appeal. For the

following reasons, this court affirms both orders.1

Background

Marsters filed a Chapter 7 bankruptcy case in January 2017.

In April, Stilkey, acting pro se, filed an adversary complaint,

in which she argued, under a number of theories, that the state-

court judgment she had previously obtained against Marsters was

nondischargeable. On June 12, the bankruptcy court granted

Marsters’ motion to dismiss the complaint. On June 19, Stilkey

filed a motion for reconsideration, asserting that the

bankruptcy court erred by dismissing her complaint. Construing

her motion as one “to alter or amend” under Rule 59(e), the

bankruptcy court denied the motion on June 23.

The fourteen-day period to appeal expired on July 7, and

the case was closed on July 10. See Fed. R. Bankr. P.

8002(a)(1). Seven days later, on July 17, Stilkey filed (1) a

motion to reopen the proceeding, (2) a motion to extend the

appeal filing deadline, and (3) a notice of appeal from the

bankruptcy court’s orders on her motion to dismiss and motion

1 The court denies Stilkey’s request for oral argument. Pursuant to Federal Rule of Bankruptcy Procedure 8019(b), where, as here, “the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument,” a district court need not hold oral argument. Fed. R. Bankr. P. 8019(b)(3).

2 for reconsideration. In her motion to extend, Stilkey stated

that she had been on vacation from June 20 to July 10, and that

she did not learn of the court’s order on the motion for

reconsideration until July 13, when she was checking her mail.

The bankruptcy court reopened the adversary proceeding, but

denied the motion to extend and, consequently, dismissed the

notice of appeal. In denying the motion to extend, the

bankruptcy court relied on the fact that “the reason for the

delay was within [Stilkey’s] control.” Doc. no. 1 at 6 of 13.

The court also noted that, despite returning from her trip on

July 10, Stilkey waited “an entire week” to seek an extension of

the deadline.

For these reasons, the bankruptcy court

concluded that Stilkey had not demonstrated excusable neglect,

as required by Rule 8002(d)(1)(B). Stilkey thereafter appealed

to this court.

Standard of Review

Under

(a), this court has jurisdiction to

hear appeals from final judgments, orders, and decrees of the

bankruptcy court, including an order denying a motion for an

extension under Federal Rule of Bankruptcy Procedure 8002. See

Sheedy v. Bankowski, No. 16-cv-10702-ADB,

, at *2

(D. Mass. Jan. 6, 2017). “District courts reviewing an appeal

from a bankruptcy court generally review findings of fact for

3 clear error, and conclusions of law de novo.”

“Discretionary rulings made pursuant to the Bankruptcy Code are

reviewable only for an abuse of discretion.” AMC Mortg. Servs.,

Inc. v. Chase, No. 08-cv-313-JL,

, at *1 (D.N.H.

Oct. 15, 2008) (quoting In re Gonic Realty Trust,

(1st Cir. 1990)). “A bankruptcy court may abuse its

discretion by ignoring a material factor that deserves

significant weight, relying on an improper factor, or, even if

it considered only the proper mix of factors, by making a

serious mistake in judgment.”

Generally, a party must file a notice of appeal within

fourteen days after entry of the order being appealed. Fed. R.

Bankr. P. 8002(a)(1). The bankruptcy court may extend the

deadline if the party files a motion to extend “(1) within the

fourteen-day period, Fed. R. Bankr. P. 8002(d)(1)(A); or (2)

within twenty-one days after the fourteen-day appeal period,

upon a showing of excusable neglect by the moving party. Fed.

R. Bankr. P. 8002(d)(1)(B).” In re Sheedy,

(1st Cir. 2017). Here, Stilkey does not dispute that, given the

timing of her motion to extend, she must demonstrate “excusable

neglect” under Rule 8002(d)(1)(B).

“A determination of whether the neglect at issue is

excusable is at bottom an equitable one, taking account of all

4 relevant circumstances surrounding the party's omission.”

Bankowski,

, at *3 (quotation and internal

quotation marks omitted). The bankruptcy court weighs four

factors in assessing whether a party’s neglect is excusable:

“(1) the danger of prejudice to the non-moving party; (2) the

length of delay and potential impact on judicial proceedings;

(3) the reason for the delay; and (4) whether the movant acted

in good faith.” In re Sheedy,

. The reason for

the delay is the most important factor.

The First Circuit has stressed that “[d]emonstrating

excusable neglect is a demanding standard and the trial judge

has wide discretion in dealing with litigants who make such

claims.”

(quotation and internal quotation marks

omitted). Thus, great deference is afforded to the bankruptcy

court’s determination, which should not be set aside “without a

definite and firm conviction that the court below abused its

discretion and committed clear error.”

Discussion

Stilkey raises a number of arguments supporting her appeal,

which the court condenses into the following essential claims:

(1) the bankruptcy court did not properly apply the relevant

standard on excusable neglect, in that the court focused solely

on the reason for delay; and (2) the court should have acted

5 more leniently and equitably in considering Stilkey’s motion to

extend, because both Marsters and the bankruptcy court committed

errors during the proceedings. Neither of these arguments

justifies reversal of the bankruptcy court’s decision.

Stilkey first asserts that the bankruptcy court did not

apply the proper standard because it did not consider all

relevant factors and extenuating circumstances, including, among

other things, Stilkey’s good faith, pro se status, and lack of

knowledge about bankruptcy matters. Instead, the bankruptcy

court “only considered whether the delay was within [Stilkey’s]

control.” Doc. no. 4 at 10 of 18. Stilkey contends these other

considerations favor a finding of excusable neglect.

The court discerns no error in the bankruptcy court’s

analysis. As the bankruptcy court correctly observed, although

there are four factors which guide a court in deciding whether

neglect is excusable, they do not carry equal weight. Rather,

the reason for the delay is the most critical, and “[e]ven where

there is no prejudice, impact on judicial proceedings, or trace

of bad faith, the favorable juxtaposition of these factors does

not excuse the delay where the proffered reason is

insufficient.”2 In re Sheedy,

(quotation,

2 Stilkey cites cases from the Third Circuit for the proposition that “all factors must be considered and balanced; no one factor trumps the others.” Doc. no. 4 at 11 of 18. The

6 brackets, and internal quotation marks omitted); see also

Hospital del Maestro v. NLRB,

(1st Cir. 2001).

In this case, the bankruptcy court noted that Stilkey filed

her motion for reconsideration “the day before she left for a

20-day vacation/business trip,” doc. no. 1 at 6 of 13, and that

the trip itself was within her control. At the time she left

for her trip, Stilkey had both the opportunity and obligation to

monitor developments with her case, and she failed to do so.

Thus, given the absence of a valid reason for the delay, the

bankruptcy court acted within its discretion in finding that

Stilkey had not demonstrated excusable neglect. See In re

Sheedy,

(bankruptcy court acted within its

discretion in denying party’s motion to extend, which was filed

one day after appeal period elapsed, where party’s counsel

justified delay on ground that he was preoccupied with

responsibilities associated with religious holiday). Stilkey’s

pro se status and lack of knowledge about the applicable

deadline do not alter this conclusion. See, e.g., Bell v. Nat’l

Collegiate Student Loan Trust 2006-1, No. 15-12301-NMG,

, at *1 (D. Mass. July 10, 2015) (“Misinterpretation or

First Circuit has clearly stated, however, that the reason for delay is the predominant factor, see In re Sheedy,

, and this court is bound to follow the law of the circuit in which it sits, see Nevor v. Moneypenny Holdings, LLC,

(1st Cir. 2016).

7 ignorance of the applicable time limits even by pro se litigants

does not constitute excusable neglect.” (quotation omitted)).

Stilkey next alleges that, during the litigation, the

bankruptcy court acted with more leniency toward Marsters than

her. She also claims that the bankruptcy court erred by, among

other things, mistakenly discharging Marsters’ debt at one point

during the litigation, an error which the court subsequently

corrected. Based on these allegations, Stilkey argues that the

bankruptcy court “demonstrated an abuse of discretion . . . when

it held [Stilkey] to a higher threshold regarding requirements

of the bankruptcy court than [Marsters] and even the court

itself.” Doc. no. 4 at 13 of 18.

The court is not persuaded. These allegations are

unrelated to, and do not bear on, the pertinent issue—whether

Stilkey has demonstrated excusable neglect under Rule

8002(d)(1)(B). They do not excuse Stilkey’s noncompliance with

an unambiguous deadline, and they do not render the bankruptcy

court’s decision on the motion to extend an abuse of discretion.

Accordingly, the bankruptcy court did not err when it

denied Stilkey’s motion to extend and thereafter dismissed her

notice of appeal. See Colon-Santana v. Martinez-Malave,

,

, at *1 (1st Cir. 1997) (“Untimely

8 notice of appeal deprives the district court of jurisdiction to

review the bankruptcy court's order.”).

CONCLUSION

For the reasons stated herein, the decisions of the

bankruptcy court are AFFIRMED.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

January 9, 2018

cc: Edmond J. Ford, Esq. Richard D. Gaudreau, Esq. Geraldine L. Karonis, Esq. Eva Marie Stilkey, pro se

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