Palmour v. Budd (In re Budd)
Palmour v. Budd (In re Budd)
Opinion of the Court
Emmet G. Sullivan, United States District Judge *2In November 2016, Appellant Aihua Palmour initiated an adversary proceeding against Debtor-Appellee Kimberly Budd in the United States Bankruptcy Court for the District of Columbia ("Bankruptcy Court"). After a trial, the Bankruptcy Court dismissed Ms. Palmour's complaint. Months later, the Bankruptcy Court also denied Ms. Palmour's motion for reconsideration. On February 5, 2018, Ms. Palmour, proceeding pro se , appealed the Bankruptcy Court's dismissal to this Court. Pending before the Court is Ms. Budd's motion to dismiss Ms. Palmour's appeal. After considering the motion, the response and reply thereto, the record, and the applicable law, the Court hereby GRANTS the motion to dismiss.
I. Background
In May 2012, Ms. Palmour sued Ms. Budd in the Superior Court of the District of Columbia for breach of contract arising out of a purportedly fraudulent real estate transaction. A.R., ECF No. 2-1 at 79-80.
After a trial, the Bankruptcy Court dismissed Ms. Palmour's complaint on August 3, 2017. See
In response, Ms. Budd filed a motion to dismiss Ms. Palmour's appeal. See Appellee's Mot., ECF No. 4. The motion is now ripe for review.
II. Analysis
Ms. Budd argues that the appeal must be dismissed because Ms. Palmour failed to file a notice of appeal within fourteen days of the Bankruptcy Court's order denying her motion for reconsideration, as required by Federal Rule of Bankruptcy Procedure 8002. See Appellee's Mot., ECF No. 4. Accordingly, Ms. Budd argues that *3this Court lacks jurisdiction over Ms. Palmour's appeal because failure to file a notice of appeal within the fourteen days is a "jurisdictional barrier."
Appellants may toll the Rule 8002 appeal deadline by filing one of four motions within fourteen days after the judgment is entered: (1) a motion to amend pursuant to Bankruptcy Rule 7052; (2) a motion to alter or amend the judgment under Bankruptcy Rule 9023; (3) a motion for a new trial under Bankruptcy Rule 9023; or, as applicable here, (4) a motion for relief under Bankruptcy Rule 9024-that is, Federal Rule of Civil Procedure 60(b). Fed. R. Bankr. P. 8002(b). If the appellant files one of these motions, as Ms. Palmour did when she filed her motion for reconsideration, "the time to file an appeal runs for all parties from the entry of the order disposing of the ... motion."
Finally, "the Bankruptcy Court may extend the time to file a notice of appeal upon a party's motion." Fed. R. Bankr. P. 8002(d)(1).
It is undisputed that Ms. Palmour did not file her notice of appeal within fourteen days of the Bankruptcy Court's January 3, 2018 order denying her motion for reconsideration, as required by Bankruptcy Rule 8002(a). See Appellant's Opp'n, ECF No. 5; see also Docket, Adversary Proceeding No. 16-10039 (notice of appeal filed on February 2, 2018). It is also undisputed that Ms. Palmour did not file a motion for an extension of time within fourteen days of the Bankruptcy Court's January 3, 2018 order, or within twenty-one days after that time, as required by Bankruptcy Rule 8002(d). See
Ms. Budd argues that the Court lacks jurisdiction over Ms. Palmour's appeal because Rule 8002 is "mandatory and jurisdictional" and thus, the Court may not consider whether Ms. Palmour received notice of the Bankruptcy Court's order denying her motion for reconsideration. Appellee's Reply, ECF No. 6 at 2. Ms. Palmour does not respond to this argument, beyond asserting her lack of notice. See Appellant's Opp'n, ECF No. 5.
*4Failure to comply with a jurisdictional time prescription "deprives a court of adjudicatory authority over the case, necessitating dismissal." Hamer v. Neighborhood Hous. Servs. of Chicago , --- U.S. ----,
In the wake of Hamer , several courts have concluded that the time limitation in Bankruptcy Rule 8002 is jurisdictional because the deadline is imposed by
Ms. Palmour contends that the Court should forgive her late appeal because the Bankruptcy Court erred in not notifying her that it had denied her motion for reconsideration, which commenced the running of the Rule 8002 clock. Appellant's Opp'n, ECF No. 5 at 1. Unfortunately, it does indeed appear undisputed that Ms. Palmour did not receive notice of the Bankruptcy Court's order. The "certificate of notice" entered by the clerk states that notice by mail was sent only to Ms. Budd and the U.S. Trustee and notice by email was sent only to Ms. Budd's attorney. Docket No. 26, Adversary Proceeding 16-10039. Thus, due to court error, Ms. Palmour *5did not receive notice that the Bankruptcy Court had denied her motion for reconsideration. However, this Court may not excuse her untimely appeal.
In cases where an appellant can demonstrate excusable neglect, as Ms. Palmour probably could have, Rule 8002(d)(1) requires the appellant to file a motion for an extension of time within thirty-five days of the Bankruptcy Court's order. See Fed. R. Bankr. P. 8002(d)(1) (comprised of the 14 days for filing an appeal pursuant to Rule 8002(a)(1) plus the 21 days thereafter for filing a motion to enlarge time based on excusable neglect). Ms. Palmour learned about the Bankruptcy Court's order denying her motion for reconsideration within this thirty-five day window. See Appellant's Opp'n, ECF No. 5 at 1 (stating that Ms. Palmour learned about the Bankruptcy Court's January 3, 2018 denial on January 31, 2018). However, Ms. Palmour did not file a motion for an extension of time to file a notice of appeal. See Docket, Adversary Proceeding 16-10039. Rule 8002" 'does not allow a party to claim excusable neglect after the time period has expired.' " In re Allen , Case No. 16-23,
Although Bankruptcy Rule 9022 states that "immediately on the entry of a judgment or order the clerk shall serve a notice of entry ... on the contesting parties," it also mandates that "lack of notice of the entry does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 8002." Fed. R. Bankr. P. 9022(a) (emphasis added). Thus, "[n]otification by the clerk is merely for the convenience of litigants. And lack of such notification in itself has no effect upon the time for appeal." In re Hilliard ,
Notwithstanding the clerk's regrettable error in not sending notice to Ms. Palmour, the Court must grant Ms. Budd's motion to dismiss Ms. Palmour's appeal.
III. Conclusion and Order
Accordingly, for the reasons set forth in this Memorandum Opinion and Order, Ms. *6Budd's motion to dismiss Ms. Palmour's appeal is GRANTED . Ms. Palmour's case is closed. This is a final, appealable Order.
SO ORDERED.
When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document.
A Bankruptcy Court may not extend the time to file a notice of appeal for certain judgments or orders inapplicable here. See Fed. R. Bankr. P. 8002(d)(2).
Moreover, the Court may not treat Ms. Palmour's untimely appeal as a motion to extend the time to appeal because Rule 8002(d) provides that only the Bankruptcy Court may extend the time to appeal. Fed. R. Bankr. P. 8002(d) ; see also Netzer v. Office of Lawyer Regulation ,
Reference
- Full Case Name
- IN RE: Kimberly BUDD, Debtor. Aihua Palmour v. Kimberly Budd
- Cited By
- 2 cases
- Status
- Published