In re Heartland Memorial Hospital, LLC

473 B.R. 897, 2012 WL 2401982, 2012 Bankr. LEXIS 2909, 56 Bankr. Ct. Dec. (CRR) 185
CourtUnited States Bankruptcy Court, N.D. Indiana
DecidedJune 21, 2012
DocketNo. 07-20188 JPK
StatusPublished
Cited by1 cases

This text of 473 B.R. 897 (In re Heartland Memorial Hospital, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Heartland Memorial Hospital, LLC, 473 B.R. 897, 2012 WL 2401982, 2012 Bankr. LEXIS 2909, 56 Bankr. Ct. Dec. (CRR) 185 (Ind. 2012).

Opinion

MEMORANDUM OF DECISION AND ORDER CONCERNING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL (“MOTION”)

J. PHILIP KLINGEBERGER, Bankruptcy Judge.

The Motion, which was filed by Dr. Jeffrey R. Yessenow (“Yessenow”) on June 5, 2012, seeks the court’s dispensation pursuant to Fed.R.Bankr.P. 8002(c)(2) to file a notice of appeal after the date upon which the notice was required to be filed by Fed.R.Bankr.P. 8002(a). The basis for the Motion is that a notice of appeal was not timely filed due to excusable neglect.

For the reasons hereinafter stated, the court determines that the Motion will be denied.

The order from which Yessenow proposes to take an appeal was entered as record #2286 on May 21, 2012. The foregoing document was entered as a separate “judgment” pursuant to the provisions of Fed. R.Civ.P. 58(a)1; a separate memorandum of decision with respect to the issues addressed by the order was entered as record # 2285 on May 21, 2012. Notice of entry of the order was properly provided pursuant to Fed.R.Bankr.P. 9022(a). The order was docketed on the record of this case at 2:41 p.m. (EDT) on May 21, 2012. The Affidavit of Kristi L. Browne, which accompanies Yessenow’s Motion, states that the order was received by her office on May 21, 2012 after 11:00 p.m. Thus, [900]*900Yessenow’s counsel received electronic notification of the entry of the order at issue on the same date upon which the order was entered.

The basis upon which Yessenow seeks relief under Fed.R.Bankr.P. 8002(c)(2) for failure to timely file a notice of appeal based upon “excusable neglect” is stated in paragraphs 2 and 3 of the Affidavit of Kristi L. Browne, as follows:

2. On May 21, 2012, the Court entered an order denying Dr. Yessenow’s motion to disqualify and entered judgment on that order. The order and judgment were not electronically received by my office until after 11:00 p.m.
3. The docketing staff at my office therefore did not receive the order and judgment until May 22, 2012, and the deadline to appeal was docketed as fourteen days thereafter, June 5, 2012.

The Motion is governed by the provisions of Fed.R.Bankr.P. 8002(c)(2), which states:

(2) A request to extend the time for filing a notice of appeal must be made by written motion filed before the time for filing a notice of appeal has expired, except that such a motion filed not later than 21 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect. An extension of time for filing a notice of appeal may not exceed 21 days from the expiration of the time for filing a notice of appeal otherwise prescribed by this rule or 14 days from the date of entry of the order granting the motion, whichever is later.

The deadline for filing a notice of appeal provided for by Fed.R.Bankr.P. 8002(a) begins with the proper docketing of record of the judgment/order from which an appeal is proposed to be taken. As stated in Stelpflug v. Federal Land Bank of St Paul, 790 F.2d 47, 48-49 (7th Cir.1986):

Bankruptcy Rule 8002(a), modeled after Rule 4(a) of the Federal Rules of Appellate Procedure, see Bankr.R. 8002(a), Notes of Advisory Committee on Rules, provides that “notice of appeal shall be filed with the clerk of the bankruptcy court within 10 days from the entry of the judgment, order or decree appealed from.” When entering an order on the docket, the clerk of the bankruptcy court is required to make a notation in the docket to show the date the entry was made, pursuant to Bankruptcy Rule 5003(a).
“Entry” has a well defined meaning under the rules; it occurs only when the essentials of a judgment or order are set forth in a written document separate from the court’s opinion or memorandum and when the substance of this separate document is reflected in an appropriate notation on the docket sheet assigned to the action.... 2

In this case, the order was docketed as required, and the entry of the order was thus made on May 21, 2012.

Yessenow’s contentions concerning “excusable neglect” revolve primarily around criteria stated in Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), which did not address a deadline for filing of an appeal, but which many courts nevertheless apply to the circumstances of the instant matter. However, the appropriate [901]*901standard by which to determine the Motion is not simply by means of a “scorecard” which applies the four criteria stated in Pioneer. Rather, as stated in In re Gehl, 324 B.R. 756, 759 (Bankr.N.D.Iowa 2005):

Excusable neglect is not defined in the Bankruptcy Rules. Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In determining whether a party’s neglect of a deadline is excusable, the Supreme Court has held that “the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Gibbons v. U.S., 317 F.3d 852, 854-55 (8th Cir.2003) (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). An analysis of the relevant surrounding circumstances includes a consideration of the following factors: (1) the danger of prejudice to the debtor; (2) the length of delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. In re Van Houweling, 258 B.R. 173, 176 (8th Cir. BAP 2001) (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). “It is the movant’s burden to demonstrate to the trial court that excusable neglect exists.” In re Food Barn Stores, Inc., 214 B.R. 197, 200 (8th Cir. BAP 1997).
These four factors do not carry equal weight; the excuse given for the late filing must be given the greatest import. Gibbons, 317 F.3d at 854; Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 460 (8th Cir.2000). “While prejudice, length of delay, and good faith might have more relevance in a closer case, the reason-for-delay factor will always be critical to the inquiry.” Lowry, 211 F.3d at 463.

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Bluebook (online)
473 B.R. 897, 2012 WL 2401982, 2012 Bankr. LEXIS 2909, 56 Bankr. Ct. Dec. (CRR) 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-heartland-memorial-hospital-llc-innb-2012.