Maxon v. Arrowsmith

• Court: District Court, D. Arizona
• Decided: February 7, 2025
• Docket: 2:25-cv-00004
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Gregor y B. Maxon et al., ) No. CV-25-00004-PHX-SPL ) 9 ) 10 Appellants, ) ORDER vs. ) ) 11 ) Richard Arrowsmith, ) 12 ) 13 Appellee. ) ) 14 )

15 Before the Court is Appellee Richard Arrowsmith’s Motion to Dismiss.1 (Doc. 5). 16 Appellee moves to dismiss Appellants Gregory B. Maxon and Linda E. Maxon’s appeal as 17 untimely. (Id. at 1). For the following reasons, the Motion is granted. 18 Under Federal Rule of Bankruptcy Procedure 8002(a)(1) (“Rule 8002”), “a notice 19 of appeal must be filed with the bankruptcy clerk within 14 days after entry of the 20 judgment, order, or decree being appealed.” Fed. R. Bankr. P. 8002(a)(1). “If a party fails 21 to timely file a notice of appeal, the appellate court is deprived of jurisdiction to review the 22 bankruptcy court’s order.” In re BP Fisher L. Grp., LLP, No. SACV 24-0860-KK, 2024 23 WL 4800079, at *1 (C.D. Cal. Sept. 6, 2024) (citing In re Mouradick, 13 F.3d 326, 327 24 (9th Cir. 1994)). The Rule further provides that an order is “entered” when it is filed on the 25

26 1 Appellants failed to file a timely Response to the Motion. The Court may construe this lack of response as Appellants’ consent to granting the Motion. See LRCiv. 7.2(i) (“[I]f 27 the unrepresented party or counsel does not serve and file the required answering memoranda . . . such non-compliance may be deemed a consent to the denial or granting 28 of the motion and the Court may dispose of the motion summarily.”). 1 docket. Fed. R. Bankr. P. 8002(a)(5)(A). Additionally, it provides guidelines for a party to 2 extend the time to appeal by filing a motion with the bankruptcy court within 14 days or 3 21 days where excusable neglect is shown. Fed. R. Bankr. P. 8002(d). “Once time has 4 expired to request an extension, however, the order may no longer be appealed even upon 5 showing of excusable neglect.” In re Nazemi, No. 20-CV-00094-BAS-WVG, 2020 WL 6 2037112, at *1 (S.D. Cal. Apr. 28, 2020) (citation omitted). 7 On November 22, 2024, the U.S. Bankruptcy Court for the District of Arizona 8 entered an order denying Appellants Gregory B. Maxon and Linda E. Maxon’s Motion to 9 Disqualify Trustee’s Attorney. (Doc. 1 at 8–9). Thus, the deadline for an appeal was 10 December 6, 2024. Appellants did not file their Notice of Appeal until December 30, 2024. 11 (Doc. 1 at 5). Although Appellants’ Notice of Appeal reveals that the Date of Service of 12 the November 22, 2024 Order was December 17, 2024, Rule 8002 is clear that the 14-day 13 deadline is triggered when the order being appealed is entered on the docket, not from 14 service of the order. (Id. at 6); Fed. R. Bankr. P. 8002(a)(1), (5)(A); In re Weston, 953 F.2d 15 1390 (9th Cir. 1992) (date of service does not extend time for filing appeal pursuant to Rule 16 9006(f)). 17 Thus, Appellants’ appeal was untimely, and they did not file a motion for an 18 extension regarding the time to appeal. (Doc. 5 at 3). Moreover, more than 21 days have 19 passed since the initial appeal deadline expired, and Appellants have missed the deadline 20 to file a motion for extension with the bankruptcy court. As such, this Court lacks 21 jurisdiction over the appeal, and the action must be dismissed. Accordingly, 22 IT IS ORDERED that Appellee Richard Arrowsmith’s Motion to Dismiss (Doc. 5) 23 is granted. 24 25 26 27 /// 28 /// 1 IT IS FURTHER ORDERED that this case is dismissed, and the Clerk of Court shall terminate this action. 3 Dated this 7th day of February, 2025. 4 5 6 RGR 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28