Brown v. Zarek

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 22, 1998
• Docket: 98-5097
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 22 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

WALTER MARLIN BROWN,

Appellant,

v. No. 98-5097 (D.C. No. 98-CV-98-H) WILLIAM J. ZAREK; COPPOLA (N.D. Okla.) SANDRE & MCCONVILLE, P.C.; RICHARD O. MCCONVILLE,

Appellees.

ORDER AND JUDGMENT *

Before TACHA, BALDOCK, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Appellant Walter Marlin Brown seeks review of an order of the district

court dismissing his appeal from an order of the bankruptcy court which

dismissed his Chapter 12 proceeding. We have jurisdiction under 28 U.S.C.

§§ 1291 and 158(d), and we affirm. We review the district court’s dismissal for

lack of jurisdiction de novo. See Weston v. Mann (In re Weston), 18 F.3d 860,

862 (10th Cir. 1994).

The operative dates are not in dispute. The bankruptcy court dismissed

plaintiff’s case on December 18, 1997. The notice of appeal was filed thirteen

days later, on December 31, 1997. “Bankruptcy Rule 8002(a) provides that a

notice of appeal must be filed within ten days of the bankruptcy court’s entry of

judgment.” Deyhimy v. Rupp (In re Herwit), 970 F.2d 709, 710 (10th Cir. 1992).

Intermediate Saturdays, Sundays and legal holidays are not excluded from the

ten-day period under Fed. R. Bankr. P. 9006(a). Id. at n.3.

The tenth day after the bankruptcy court entered its order of dismissal,

December 28, 1997, was a Sunday; thus the last day for appellant to file a timely

notice of appeal was Monday, December 29, 1997. See Rule 9006(a). Appellant

mailed the notice of appeal on December 29, and it was filed two days later.

Appellant’s argument that he was entitled to an additional three days for

mailing under Fed. R. Bankr. P. 9006(f) is unavailing. A notice of appeal is filed

as of the date it is received by the court, not as of the date it is mailed. See

-2- Arbuckle v. First Nat’l Bank of Oxford (In re Arbuckle), 988 F.2d 29, 31 (5th Cir.

1993); United States ex rel. Rudd v. Schimmels (In re Schimmels), 85 F.3d 416,

420 n.4 (9th Cir. 1996). That appellant received notice by mail of the order

dismissing the case is irrelevant. See Constellation Dev. Corp. v. Dowden

(In re B.J. McAdams, Inc.), 999 F.2d 1221, 1225 (8th Cir. 1993) (even if

appellant had never received notice under Fed. R. Bankr. P. 9002, the time to

appeal would not be altered). It is the litigant’s affirmative duty to monitor the

court’s docket. See Key Bar Inv., Inc. v. Cahn (In re Cahn), 188 B.R. 627, 632

(B.A.P. 9th Cir. 1995); Delaney v. Alexander (In re Delaney), 29 F.3d 516, 518

(9th Cir. 1994) (parties have affirmative duty to monitor dockets to inform

themselves of entry of orders they may wish to appeal).

The district court correctly concluded it lacked jurisdiction to entertain

appellant’s appeal. See Kuntz v. DASU L.L.C. (In re Cray Computer Corp.),

No. 97-1185, 1998 WL 229677 at **1 (10th Cir. May 7, 1998) (unpublished

decision). The motion for stay is denied as moot. The motions to strike and for

sanctions are also denied.

-3- The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED. The mandate shall issue forthwith.

ENTERED FOR THE COURT PER CURIAM

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