In Re Everton Aloysius Sterling (Sterling v. Carlebach)

690 F. App'x 747

• Court: Court of Appeals for the Second Circuit
• Decided: May 19, 2017
• Docket: 16-1120-bk
• Status: Unpublished

Opinion

SUMMARY ORDER

Everton Aoysius Sterling, pro se, appeals from the dismissal of his bankruptcy appeal for lack of subject matter jurisdiction. On plenary review of a decision of a district court functioning as an intermediate appellate court in a bankruptcy case, we assess legal conclusions, including a determination of subject matter jurisdiction, de novo, while, we consider factual findings only for clear error. See In re Lehman Bros. Holdings Inc., 761 F.3d 303, 308 (2d Cir. 2014); Bechtel v. Competitive Techs., Inc., 448 F.3d 469, 471 (2d Cir. 2006). In so doing, we assume the parties’ familiarity with the facts and procedural history of the case, which we reference only as necessary to explain our decision to affirm.

An appeal to the district court from an order of the bankruptcy court must be made within 14 days. See Fed. R. Bankr. P. 8002(a)(1); see also 28 U.S.C. § 158(c)(2) (providing that bankruptcy appeal must be filed within time prescribed by Fed. R. Bankr. P. 8002). The time limitations in Fed. R. Bankr. P. 8002(a) are jurisdictional, regardless of a party’s pro se status. See In re Siemon, 421 F.3d 167, 169 (2d Cir. 2005). Thus, “in the absence of a timely notice of appeal in the district court, [a] district court is without jurisdiction to consider the appeal, regardless of whether the appellant can demonstrate ‘excusable neglect.’ ” Id.

We conclude that the district court properly dismissed Sterling’s bankruptcy appeal for lack of subject matter jurisdiction because his notice of appeal was filed on January 13, 2016 — more than 14 days after the entry of the bankruptcy court’s December 22, 2015 order. Sterling’s argument that he was away when the bankruptcy court entered its decision and, therefore, actually had fewer than 14 days to file his appeal is foreclosed by In re Siemon, 421 F.3d at 169. Moreover, Ster ling does not meet any of the exceptions to the 14-day deadline enumerated in Fed. R. Bankr. P. 8002. 1

We have considered Sterling’s remaining arguments and conclude that they are without merit. Accordingly, we AFFIRM the March 30, 2016 order of the district court.

1 . Insofar as Sterling did, in fact, file a Fed. R. Bankr. P. 7052 motion, that motion did not toll the time limit for appeal because it was itself untimely, having been filed 16 days after the entry of the bankruptcy court's order. See Fed. R. Bankr. P. 7052 (mandating 14-day deadline for filing motion under rule).