In re Ateco Inc.

529 B.R. 298, 2015 Bankr. LEXIS 1279, 2015 WL 1743198
CourtUnited States Bankruptcy Court, C.D. California
DecidedApril 14, 2015
DocketCase No.: 1:10-bk-22623-MT
StatusPublished

This text of 529 B.R. 298 (In re Ateco Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ateco Inc., 529 B.R. 298, 2015 Bankr. LEXIS 1279, 2015 WL 1743198 (Cal. 2015).

Opinion

MEMORANDUM OF DECISION RE REMAND FROM THE DISTRICT COURT FOR THE LIMITED DETERMINATION OF EXCUSABLE NEGLECT UNDER FED. R. BANKR. P. 8002(d)(1)(B)

[No hearing required]

Maureen A. Tighe, United States Bankruptcy Judge

On April 9, 2014, the Court issued its Memorandum of Decision re Trial on (1) Validity of Lien; and (2) Disallowance of Claim (the “Trial Memorandum”), finding after a full trial on t;he merits that John Hebb (“Hebb”) was not a creditor of Debt- or’s bankruptcy estate (bankr.doc. no. 356). An Order Sustaining Debtor’s Objection to Hebb’s Claim was entered on the bankruptcy docket (no. 357), and a Partial Judgment in favor of Debtor was entered on the adversary docket (no. 115).

On April 25, 2014, at 12:02 a.m., Hebb filed a Motion for New Trial (the “New Trial Motion”). Under Fed. R. Bankr.P. 9023, a motion for a new trial must be filed no later than 14 days after entry of judgment. A timely motion for a new trial will toll the time for appeal until “the entry of [300]*300the order disposing of the last such motion outstanding.” Fed. R. Bankr.P. 8002(b)(1)(C). Hebb’s New Trial Motion was filed 15 days after judgment was entered, and thus did not toll the appeal deadline. Nevertheless, on May 6, 2014, Hebb filed a Notice of Appeal to the U.S. District Court (bankr.doc. no. 380).

On May 7, 2014, Hebb filed a Motion to Deem New Trial Motion Timely Filed (the “Timeliness Motion”), in which he argued that he could not file his New Trial Motion on time using the recommended internet browser due to CM/ECF technical failures (bankr.doc. no. 384). On that same day, Hebb also filed a Motion to Extend Time to Appeal under Rule 8002(c) (the “Motion to Extend”). The Court entered an order granting the Timeliness Motion on- May 9, 2014 because the New Trial Motion “was late by solely a few minutes and, as such, there is no prejudice to Debtor.” [bankr. doc. no. 395 at 2.] The Court then denied the Motion to Extend as moot.

Reviewing the appeal, the District Court explained that “a court may not enlarge the time for taking action under Rule[] ... 9023 [which governs timing for a new trial motion].” Fed. R. Bankr.P. 9006(b)(2). Accordingly, the District Court found that the Court lacked authority to deem Hebb’s New Trial Motion timely filed, even if it found there was sufficient justification for doing so. See In re Se. Bank Corp., 97 F.3d 476, 478 (11th Cir.1996) (citing 9006(b)(2) to conclude that “the bankruptcy court was without jurisdiction to grant [a] motion for rehearing” when the motion was untimely filed under Rule 9023); see also In re Harper, 489 B.R. 251, 260 (Bankr.N.D.Ga.2013) (declining to accept late filing barred by rule 9006 even though the filing was “two minutes and forty-four seconds late” due to a computer error). As Hebb’s New Trial Motion was untimely, it could not toll the time for appeal, and Hebb’s May 6, 2014 Notice of Appeal was also untimely.

Bankruptcy courts have discretion to grant extensions for appeal “within 21 days after” the time for appeal has expired upon a party’s motion and showing of excusable neglect. Fed. R. Bankr.P. 8002(d)(1)(B). Hebb’s motion for extension of time under Rule 8002(c)(2) is timely in that it was filed within 21 days after expiration of the April '24, 2014 deadline to file a notice of appeal. The District Court remanded the matter for the limited purpose determining whether Hebb has met his burden of establishing “excusable neglect.”

Standard

Fed. R. Bankr.P. 8002(a) provides that, subject to certain exceptions not applicable here, a notice of appeal must be filed with the bankruptcy clerk within fourteen (14) days after the entry of judgment.

Rule 8002(d) provides for an extension of the fourteen (14) day appeal period as follows:

(1) When the Time May be Extended. Except as provided in subdivision (d)(2), the bankruptcy court may extend the time to file a notice of appeal upon a party’s motion that is filed:
(A) within the time prescribed by this rule; or
(B) within 21 days after that time, if the party shows excusable neglect
(3) Time Limits on an Extension. No extension of time may exceed 21 days after the time prescribed by this rule, or 14 days after the order granting the motion to extend time is entered, whichever is later.

Fed. R. Bankr.P. 8002 (emphasis added).

Under Rule 8002(d)(1)(B), the Plaintiffs carry the burden of proving that [301]*301the failure to file a timely appeal was the product of “excusable neglect.” See, e.g., In re Boyce, 2009 WL 4060093, at *1 (Bankr.E.D.Pa. Nov. 18, 2009); accord In re AMF Bowling Worldwide, Inc., 520 B.R. 185, 196 (Bankr.E.D.Va.2014).

The Supreme Court definitively construed Rule 9006(b)(1) in Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P’ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Pioneer informs the application of excusable neglect in every court rule in which that term is used. The Ninth Circuit specifically has held that the Pioneer standard for Rule 9006(b)(1) is used in applying Rule 8002(d)(1)(B). See Pincay v. Andrews, 389 F.3d 853 (9th Cir.2004) (en banc); In re Zilog, 450 F.3d 996 (9th Cir.2006).

To determine whether a party’s failure to meet a deadline constitutes “excusable neglect,” courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir.2010) citing, Pioneer, 507 U.S. at 395, 113 S.Ct. 1489. See also Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997) (adopting the Pioneer test for consideration of Rule 60(b) motions).

Pioneer requires that the issue of excusable neglect be determined in the context of the particular case. Pincay, 389 F.3d at 859 (stating that the “question is whether there [is] enough in the context of [the] case to bring a determination of excusable neglect within the ... court’s discretion”). The burden of presenting facts demonstrating excusable neglect is on the movant. Key Bar Investments v.

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Cite This Page — Counsel Stack

Bluebook (online)
529 B.R. 298, 2015 Bankr. LEXIS 1279, 2015 WL 1743198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ateco-inc-cacb-2015.