Segal v. O'Connell (In re Segal)

557 B.R. 46, 2016 U.S. Dist. LEXIS 116008, 2016 WL 4530458
CourtDistrict Court, E.D. New York
DecidedAugust 29, 2016
DocketBK CASE NO. 13-45519; 15-CV-1525 (KAM)
StatusPublished
Cited by10 cases

This text of 557 B.R. 46 (Segal v. O'Connell (In re Segal)) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Segal v. O'Connell (In re Segal), 557 B.R. 46, 2016 U.S. Dist. LEXIS 116008, 2016 WL 4530458 (E.D.N.Y. 2016).

Opinion

MEMORANDUM & ORDER

MATSUMOTO, United States District Judge

Bankruptcy petitioner Herman Segal (“Appellant”) moves pursuant to 28 U.S.C. § 158(a) to appeal an order by the United States Bankruptcy Court for the Eastern District of New York denying Appellant’s motion to dismiss the bankruptcy case. Richard O’Connell, the Chapter 7 trustee of Appellant’s estate (“Appellee”), opposes the motion on the ground that this court lacks jurisdiction to entertain the appeal. Appellee also contends that the court should not grant leave to appeal the order. For the reasons provided below, the appeal is dismissed for lack of jurisdiction.

[48]*48BACKGROUND

On September 13, 2013, the underlying Chapter 7 bankruptcy petition was filed on Appellant’s behalf by his attorney.1 (ECF No. 1-3, Order of the Eastern District of New York Bankruptcy Court dated Mar. 6, 2015 (“Bankr. Ct. Order”) at 2.) Appellant subsequently claimed that he had neither signed nor approved the petition, and filed a motion to dismiss the bankruptcy proceeding. (Id. at 2, 5, 8.) On March 6, 2015, after conducting an evidentiary hearing at which Appellant testified (and called witnesses), the bankruptcy court, in a well-reasoned and thorough opinion, denied Appellant’s motion to dismiss. (Id. at 1, 8,16.)

The bankruptcy court determined that Appellant had acted in bad faith by seeking the benefits of bankruptcy protection in order to forestall a foreclosure on a cooperative apartment titled in his name. (Id. at 2, 5.) The court noted that Appellant had voluntarily signed an amended bankruptcy petition and selectively participated in the Chapter 7 proceedings when it was to his benefit to do so. (Id. at 9, 16.) The court therefore held that Appellant had ratified the petition with his post-filing conduct and, alternatively, that he was equitably estopped from obtaining dismissal of the petition. (Id. at 8-10.) Further, the court found that continuing the bankruptcy case was in the best interests of both Appellant and his creditors. (Id. at 10-16.) The court concluded that Appellant “ha[d] operated in bad faith” by “accepting] the benefits of bankruptcy” but “eschewpng] his obligations as a debtor.” (Id. at 16.)

On March 24, 2015, Appellant, proceeding pro se,2 filed a notice of appeal with this court. (ECF No. 1.) On October 8, 2015, this court received the bankruptcy court’s record and set a briefing schedule pursuant to Fed. R. Bankr. P. 8018. (ECF No. 4.) Appellant was directed to serve and file his brief by November 9, 2015. (Id.; see also Fed. R. Bankr. P. 8018(a)(1) (“The appellant must serve and file a brief within 30 days after the docketing of notice that the record has been transmitted or is available electronically.”).) On January 8, 2016, after Appellant failed to timely serve or file his brief, this court ordered a telephonic status conference. (Docket Entry Jan. 8,2016.)

At the telephonic status conference held on January 21, 2016, the parties agreed to brief “the basis for this court’s jurisdiction over this bankruptcy appeal involving the denial of a motion to dismiss.” (Docket Entry Jan. 22, 2016.) Appellant was ordered to file a brief by February 4, 2016. (Id.) On February 4, 2016, Appellant contacted the court and stated that he would contact Appellee to discuss an extension. (Docket Entry Feb. 16, 2016.) On March 3, 2016, Appellee notified the court that Appellant had yet to serve or file a brief. (ECF No. 9.) Appellee accordingly moved to dismiss the appeal for lack of prosecution. (Id.) On March 14, 2016, over four months after the deadline had passed for Appellant to file a brief pursuant to Fed. R. Bankr. P. 8018(a)(1), Appellant filed a brief addressed to this court’s jurisdiction. (ECF No. 12, Appellant’s Memorandum of Law (“Appellant’s Mem.”).) Appellee withdrew the motion to dismiss the appeal (ECF No. 13) and filed a memorandum of law in opposition to Appellant’s brief. [49]*49(EOF No. 15, Appellee’s Opposition (“Ap-pellee’s Mem.”).)

DISCUSSION

I. Timeliness

As an initial matter, a bankruptcy appellant’s failure to timely file a brief can, in certain circumstances, be grounds for dismissal of the appeal. See Fed. R. Bankr. P. 8018(a)(4) (“If an appellant fails to file a brief on time ... the district court ..., after notice, may dismiss the appeal on its own motion.”). The bankruptcy appeal brief filing deadlines are strictly enforced. In In re Quebecor World (USA), Inc., No. 15-CV-2112, 2015 WL 4877422, at *1-2 (S.D.N.Y. Aug. 14, 2015), for example, a party appealing a bankruptcy court’s order missed the 30-day deadline provided in Fed. R. Bankr. P. 8018(a)(1). Thirty-six days after the deadline had passed, the court required the appéllant to show cause why the appeal should not be dismissed. Id. Over the appellant’s attorney’s objections that he did not see that the record had been transmitted and that he had emergency surgery for an illness that began near the 30-day deadline, the court dismissed the action. Id. at *2-4.

Here, although Appellant’s failure to comply with the bankruptcy appeal brief filing deadlines was more egregious than the conduct at issue in In re Quebeeor, this court will not dismiss Appellant’s appeal at this time because the court did not give Appellant notice that his failure to comply with the deadline would be grounds for ■ dismissal. Instead, the court turns to the jurisdictional issue raised by the parties. Because the court concludes that there is no jurisdiction to hear this appeal, the court does not reach the merits.

II. Jurisdiction

District courts have jurisdiction over final and, in certain circumstances, interlocutory orders of bankruptcy courts. See 28 U.S.C. § 158 (“§ 158”). Subsection (a) of § 158, which addresses appeals from the bankruptcy courts to the district courts, provides:

(a) The district courts of the United States shall have jurisdiction to hear appeals
(1) from final judgments, orders, and decrees; ... and
(3) with leave of the court, from other interlocutory orders and decrees; and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title....

§ 158(a).

The concept of finality is more relaxed in the bankruptcy context than in normal civil litigation. See In re Penn Traffic Co., 466 F.3d 75, 77-78 (2d Cir. 2006); In re Am.

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Cite This Page — Counsel Stack

Bluebook (online)
557 B.R. 46, 2016 U.S. Dist. LEXIS 116008, 2016 WL 4530458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/segal-v-oconnell-in-re-segal-nyed-2016.