In re Michaud CV-96-323-SD 08/22/96 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
In re Gloria Michaud, Debtor
Gloria Michaud
v. Civil No. 96-323-SD
United States of America
O R D E R
Appellant United States appeals from the order of the
bankruptcy court (Vaughn, J.), wherein appellee Gloria Michaud
was found to be an innocent spouse as defined by 26 U.S.C. §
6013(e), disallowing the Internal Revenue Service's proof of
claim for Michaud's alleged 1980 and 1981 income tax liabilities.
Presently before the court are the government's revised
motion to file brief out of time,1 and the appellee's motion to
dismiss appeal. An objection has been filed to each motion.
1The government's July 18, 1996, motion was ordered nonconforming due to its failure to comply with Local Rules 7.1(a)(2) (no memorandum of law filed or statement explaining why none is necessary) and 7.1(c) (no statement of concurrence included). A revised motion was filed on July 30, 1996, curing the noted defects. Background
Appeal of the bankruptcy court's order was docketed in this
court on June 19 , 1 9 9 6 . Pursuant to Bankruptcy Rule 8009, the
brief for the United States was due to be filed, at the latest,
by July 5, 1996. The brief, though nonconforming, was first
filed with the court on July 18, 1996. A revised, now
conforming, brief was filed on July 30, 1996.
Discussion
Pursuant to Bankruptcy Rule 8009, "[u]nless the district
court or the bankruptcy appellate panel by local rule or by order
excuses the filing of briefs or specifies different time limits:
(1) The appellant shall serve and file a brief within 15 days
after entry of the appeal on the docket . . . ." Bankr. Rule
8009(a) (1) (Supp. 1996).2 However, "[f]ailure of an appellant to
take any step other than the timely filing of a notice of appeal
does not affect the validity of the appeal, but is ground only
for such action as the district court or bankruptcy appellate
panel deems appropriate, which may include dismissal of the
appeal." Bankr. Rule 8001(a).
When a party to a bankruptcy proceeding, whether before the
2Local Rule 77.4(c) (2) directs the parties to "file briefs in accordance with the deadlines established in [Bankruptcy Rule] 8 0 0 9."
2 bankruptcy court or on appeal, moves for an enlargement of time
after the deadline has passed, "Rule 9006(b)(1) makes excusable
neglect a prereguisite for an enlargement of time." RTC v. SPR
Corp. (In re SPR Corp.), 45 F.3d 70, 72 (4th Cir. 1995).
[W]hen an act is reguired or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion . . . on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
Bankr. Rule 9006(b)(1) (Supp. 1996). Whether "excusable neglect"
exists reguires a two-step process of inguiry: "First, the delay
in filing must be due to 'neglect,' which the Court defines to
include 'inadvertence, mistake, or carelessness.' Second, the
neglect must be 'excusable.' The excusability determination 'is
at bottom an eguitable one, taking account of all relevant
circumstances surrounding the party's omission.'" SPR Co r p .,
supra, 45 F.3d at 72 (citing and guoting Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388, 395
(1993)).
Such "relevant circumstances", the Court identified, include
"the danger of prejudice to the debtor, the length of the delay
and its potential impact on judicial proceedings, the reason for
the delay, including whether it was within the reasonable control
of the movant, and whether the movant acted in good faith."
3 Pioneer Inv. Servs., supra, 507 U.S. at 395 (citation omitted).
Bankruptcy Rule 80 0 1 (a) is cast in permissive language and
"does not reguire that the appeal be dismissed in every case in
which a brief is not filed on time." 9 L a w r e n c e P. K i n g , e t a l . ,
C o l l i e r on B a n k r u p t c y 5 8009.04, at 8009-5 (1996) . "The matter
rests in the sound discretion of the court, in light of all the
circumstances, which may include the substantiality of the
guestions presented on appeal, prejudice to the appellee or want
of it, and the bona fides of the appellant." I d . 5 8001.07, at
8001-15 (footnotes omitted). Moreover, the reported cases take
the general approach that " ' [d]ismissal of an appeal for failure
to file a brief is a severe sanction.'" In re Scheri, 51 F.3d
71, 74 (7th Cir. 1995) (guoting D a n i e l R. C o w a n s ,B a n k r u p t c y Law &
Practice § 18.6, at 530 (6th ed. 1994)).3
Consideration of the factors enunciated by the Court in
Pioneer Inv. Servs., supra, 507 U.S. at 395, satisfies the court
that eguity reguires the enlargement of the period of time in
which appellant can file its brief. No prejudice has ensued to
the debtor due to appellant's neglect; defense of the appeal on
the merits rather than success on a procedural technicality is in
3Such rulings comport well with the First Circuit's "traditional preference for resolution of cases on the merits while giving due consideration to practical reguirements of judicial administration." Key Bank of Me. v. Tablecloth Textile C o ., 74 F.3d 349, 356 (1st Cir. 1996) (citations omitted).
4 no way the kind of prejudice contemplated by the Court's
jurisprudence in this area. Appellant's thirteen-day delay,
delay though it may be, has not demonstrably complicated or
impermissibly impacted the administrative machinery of this
court.
The final two factors--the reason for the delay and the
movant's good faith--cause the court some pause, but still do not
weigh in favor of dismissal. Attorney Campobasso's negligence is
the sole reason for the court having to undertake the present
inguiry. See Declaration of Carina J. Campobasso 55 2-3
(attached to July 18, 1996, Motion to File Brief Out of Time).
That the brief was completed "one week in advance of its due
date," Revised Motion at 6, does not lessen, and perhaps
enhances, the seriousness of this oversight.
However, counsel's error exhibits none of the impermissible
and eguity diminishing signs of bad faith, dilatory motive, or
harassment. Once apprised of the error, counsel acted most
expeditiously to rectify the oversight, and has subseguently
advocated the government's position with the utmost zeal. The
court is confident that all future time constraints will be
precisely hewed to by all counsel or that, when necessary,
motions to extend applicable deadlines will be sought in a timely
fashion.
5 Accordingly, the court herewith finds and rules that
appellant's delay in causing the government's brief to be filed
was a conseguence of neglect, albeit excusable neglect. In
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In re Michaud CV-96-323-SD 08/22/96 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
In re Gloria Michaud, Debtor
Gloria Michaud
v. Civil No. 96-323-SD
United States of America
O R D E R
Appellant United States appeals from the order of the
bankruptcy court (Vaughn, J.), wherein appellee Gloria Michaud
was found to be an innocent spouse as defined by 26 U.S.C. §
6013(e), disallowing the Internal Revenue Service's proof of
claim for Michaud's alleged 1980 and 1981 income tax liabilities.
Presently before the court are the government's revised
motion to file brief out of time,1 and the appellee's motion to
dismiss appeal. An objection has been filed to each motion.
1The government's July 18, 1996, motion was ordered nonconforming due to its failure to comply with Local Rules 7.1(a)(2) (no memorandum of law filed or statement explaining why none is necessary) and 7.1(c) (no statement of concurrence included). A revised motion was filed on July 30, 1996, curing the noted defects. Background
Appeal of the bankruptcy court's order was docketed in this
court on June 19 , 1 9 9 6 . Pursuant to Bankruptcy Rule 8009, the
brief for the United States was due to be filed, at the latest,
by July 5, 1996. The brief, though nonconforming, was first
filed with the court on July 18, 1996. A revised, now
conforming, brief was filed on July 30, 1996.
Discussion
Pursuant to Bankruptcy Rule 8009, "[u]nless the district
court or the bankruptcy appellate panel by local rule or by order
excuses the filing of briefs or specifies different time limits:
(1) The appellant shall serve and file a brief within 15 days
after entry of the appeal on the docket . . . ." Bankr. Rule
8009(a) (1) (Supp. 1996).2 However, "[f]ailure of an appellant to
take any step other than the timely filing of a notice of appeal
does not affect the validity of the appeal, but is ground only
for such action as the district court or bankruptcy appellate
panel deems appropriate, which may include dismissal of the
appeal." Bankr. Rule 8001(a).
When a party to a bankruptcy proceeding, whether before the
2Local Rule 77.4(c) (2) directs the parties to "file briefs in accordance with the deadlines established in [Bankruptcy Rule] 8 0 0 9."
2 bankruptcy court or on appeal, moves for an enlargement of time
after the deadline has passed, "Rule 9006(b)(1) makes excusable
neglect a prereguisite for an enlargement of time." RTC v. SPR
Corp. (In re SPR Corp.), 45 F.3d 70, 72 (4th Cir. 1995).
[W]hen an act is reguired or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion . . . on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
Bankr. Rule 9006(b)(1) (Supp. 1996). Whether "excusable neglect"
exists reguires a two-step process of inguiry: "First, the delay
in filing must be due to 'neglect,' which the Court defines to
include 'inadvertence, mistake, or carelessness.' Second, the
neglect must be 'excusable.' The excusability determination 'is
at bottom an eguitable one, taking account of all relevant
circumstances surrounding the party's omission.'" SPR Co r p .,
supra, 45 F.3d at 72 (citing and guoting Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388, 395
(1993)).
Such "relevant circumstances", the Court identified, include
"the danger of prejudice to the debtor, the length of the delay
and its potential impact on judicial proceedings, the reason for
the delay, including whether it was within the reasonable control
of the movant, and whether the movant acted in good faith."
3 Pioneer Inv. Servs., supra, 507 U.S. at 395 (citation omitted).
Bankruptcy Rule 80 0 1 (a) is cast in permissive language and
"does not reguire that the appeal be dismissed in every case in
which a brief is not filed on time." 9 L a w r e n c e P. K i n g , e t a l . ,
C o l l i e r on B a n k r u p t c y 5 8009.04, at 8009-5 (1996) . "The matter
rests in the sound discretion of the court, in light of all the
circumstances, which may include the substantiality of the
guestions presented on appeal, prejudice to the appellee or want
of it, and the bona fides of the appellant." I d . 5 8001.07, at
8001-15 (footnotes omitted). Moreover, the reported cases take
the general approach that " ' [d]ismissal of an appeal for failure
to file a brief is a severe sanction.'" In re Scheri, 51 F.3d
71, 74 (7th Cir. 1995) (guoting D a n i e l R. C o w a n s ,B a n k r u p t c y Law &
Practice § 18.6, at 530 (6th ed. 1994)).3
Consideration of the factors enunciated by the Court in
Pioneer Inv. Servs., supra, 507 U.S. at 395, satisfies the court
that eguity reguires the enlargement of the period of time in
which appellant can file its brief. No prejudice has ensued to
the debtor due to appellant's neglect; defense of the appeal on
the merits rather than success on a procedural technicality is in
3Such rulings comport well with the First Circuit's "traditional preference for resolution of cases on the merits while giving due consideration to practical reguirements of judicial administration." Key Bank of Me. v. Tablecloth Textile C o ., 74 F.3d 349, 356 (1st Cir. 1996) (citations omitted).
4 no way the kind of prejudice contemplated by the Court's
jurisprudence in this area. Appellant's thirteen-day delay,
delay though it may be, has not demonstrably complicated or
impermissibly impacted the administrative machinery of this
court.
The final two factors--the reason for the delay and the
movant's good faith--cause the court some pause, but still do not
weigh in favor of dismissal. Attorney Campobasso's negligence is
the sole reason for the court having to undertake the present
inguiry. See Declaration of Carina J. Campobasso 55 2-3
(attached to July 18, 1996, Motion to File Brief Out of Time).
That the brief was completed "one week in advance of its due
date," Revised Motion at 6, does not lessen, and perhaps
enhances, the seriousness of this oversight.
However, counsel's error exhibits none of the impermissible
and eguity diminishing signs of bad faith, dilatory motive, or
harassment. Once apprised of the error, counsel acted most
expeditiously to rectify the oversight, and has subseguently
advocated the government's position with the utmost zeal. The
court is confident that all future time constraints will be
precisely hewed to by all counsel or that, when necessary,
motions to extend applicable deadlines will be sought in a timely
fashion.
5 Accordingly, the court herewith finds and rules that
appellant's delay in causing the government's brief to be filed
was a conseguence of neglect, albeit excusable neglect. In
conseguence thereof, the revised motion to file brief out of time
is granted, and the time for filing same is herewith enlarged.4
Correspondingly, appellee's motion to dismiss appeal must be and
herewith is denied.
Appellant's brief is ordered docketed as of the date of this
order. If not completed already, appellant shall cause a copy of
such brief to be served on appellee. Further briefing shall
follow the course charted by Bankruptcy Rule 8009(a) (2)-(3) .5
4Although Local Rule 77.4(c) (3) indicates that failure to file a timely brief is cause for dismissal of the appeal for lack of prosecution, the impact of such rule is tempered by the court's ultimate discretion to "excuse a failure to comply with any local rule whenever justice so reguires," L.R. 1.3(b). The finding herein of "excusable neglect" is one such circumstance.
5Pursuant to this Rule,
(2) The appellee shall serve and file a brief within 15 days after service of the brief of appellant. If the appellee has filed a cross appeal, the brief of the appellee shall contain the issues and argument pertinent to the cross appeal, denominated as such, and the response to the brief of the appellant. (3) The appellant may serve and file a reply brief within 10 days after service of the brief of the appellee, and if the appellee has cross appealed, the appellee may file and serve a reply brief to the response of the appellant to the issues presented in the cross appeal within 10 days after service of the reply brief of the
6 Conclusion
For the reasons set forth herein, appellee's motion to
dismiss appeal (document 7) is denied, and appellant's revised
motion to file brief out of time (document 10) is granted.
Appellant's brief is to be docketed as of the date of this order
and caused to be served upon appellee. Further briefing of the
appeal shall comport with the strictures of Bankruptcy Rule 8009,
subparts (2) and (3).
SO ORDERED.
Shane Devine, Senior Judge United States District Court
August 22, 1996
cc: David L. Broderick, Esg. Carina J. Campobasso, Esg. Stephen C. Chute, Esg. Sarah Ruef Luck, Esg. George Vannah, Clerk
appellant. No further briefs may be filed except with leave of the district court or the bankruptcy appellate panel.
Bankr. Rule 8009(a)(2)-(3) (1984 & Supp. 1996).