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IN RE W. T. GRANT CO.

December 21, 1976

In re W. T. GRANT COMPANY, Bankrupt. Paul S. BERGER, Trustee, et al., Plaintiffs-Appellants,
v.
Charles G. RODMAN, Trustee in Bankruptcy of W. T. Grant Company, Bankrupt, Defendant-Appellee



The opinion of the court was delivered by: COOPER

MEMORANDUM

 IRVING BEN COOPER, District Judge.

 We have before us three matters related to the bankrupt estate of W. T. Grant: first, a motion by defendant trustee Charles G. Rodman in behalf of the Estate of W. T. Grant Company, Bankrupt, to dismiss plaintiffs' appeal from an order of the Bankruptcy Court (Galgay, J.) dated July 26, 1976 and entered July 29, 1976; second, plaintiffs' appeal from Judge Galgay's order dated September 14, 1976 which denied their motion for a nunc pro tunc extension of time to file a notice of appeal from the aforementioned order of July 29th; and third, plaintiffs' appeal from Judge Galgay's order of October 1, 1976 which denied plaintiffs' motion for rehearing and reconsideration of the September 14th order. For the reasons set forth below, we are constrained to and do grant defendant's motion to dismiss plaintiffs' appeal, and we affirm the September 14 and October 1 orders of the Bankruptcy Court.

 Plaintiffs Paul S. Berger, trustee and others filed an amended complaint n.1 which was dismissed on defendant's motion for summary judgment for failure to state a claim. Judge Galgay's order, dated July 26, 1976, was duly entered and docketed by the clerk of the Bankruptcy Court on July 29, 1976. Notice of that order was mailed to both New York and California counsel appearing for plaintiffs. On August 5, New York counsel, Dirk S. Gould, Esq., received a copy of the order; California counsel, Berger, Berger, Kahn & Shafton, received its copy on August 9th. Upon receiving notification of the order, New York counsel secured a copy of Judge Galgay's opinion and promptly mailed it to their counterparts in California. Thereupon, California counsel mailed a notice of appeal dated August 11th which was duly filed by the clerk on August 16th. (Gould Affid., dated September 7, 1976, pp. 2-3) The bankruptcy clerk alerted plaintiffs' counsel that their notice of appeal was filed late. Notwithstanding this information, plaintiffs' counsel did nothing beyond paying the requisite fee.

 On August 30, 1976, defendant moved in District Court (Part I) for an order dismissing plaintiffs' appeal as untimely taken. The hearing on that motion now before us was adjourned several times while plaintiffs moved the Bankruptcy Court for an order to extend the time for filing a notice of appeal. Upon being denied such requested relief by oral order of September 14, 1976, plaintiffs moved for a rehearing and reconsideration on the basis of new evidence. Judge Galgay denied that motion on October 1, 1976. The Bankruptcy Court's orders denying plaintiffs' motions for extension and reconsideration are now before us on timely appeal.

 We turn first to defendant's motion to dismiss plaintiffs' appeal from Judge Galgay's order filed July 29th dismissing plaintiffs' amended complaint (the Dismissal Order). The principal issue is whether the filing of the notice of appeal on August 16, 18 days after the entry of the Dismissal Order, was timely.

 Rule 801 of the Bankruptcy Rules provides in pertinent part:

 
An appeal from a judgment or order of a referee to a district court shall be taken by filing a notice of appeal with the referee within the time allowed by Rule 802.

 Rule 802(a) states:

 
The notice of appeal shall be filed with the referee within 10 days of the date of entry of the judgment or order appealed from. (emphasis added)

 Thus, the Bankruptcy Rules provide that appeals must be noticed within 10 days of entry of the judgment or order appealed from. There is a provision in the Rules, however, allowing for an extension of time over this 10 day period:

 
The referee may extend the time for filing the notice of appeal by any party for a period not to exceed 20 days from the expiration of the time otherwise prescribed by this rule. A request to extend the time for filing a notice of appeal must be made before such time has expired, except that a request made after the expiration of such time may be granted upon a showing of excusable neglect . . . . Rule 802(c)

 Accordingly, an appeal from a Bankruptcy Judge's order must be filed within 10 days after the entry of that order, unless a request for an extension is made within the initial 10 day period in which case the appellant has 20 additional days to file the notice of appeal. If excusable neglect is shown, the request for an extension need not be made within 10 days of the filing of the bankruptcy order. However, assuming "excusable neglect," any request for an extension must be made within the 30 day period following entry of the judgment or order. The Advisory Committee's comment on Bankruptcy Rule 802(c) is clear on this point:

 
A request for an extension of the time for filing a notice of appeal from a referee's judgment or order not authorizing the sale of property may be filed after the expiration of the 10-day period following its entry . . . but the extension may be granted on such a request only on a showing that the delay was due to excusable neglect. Moreover, any allowable extension cannot exceed the 20-day limitation prescribed by the first sentence of subdivision (c). Thus the maximum time allowable under this rule for filing an appeal is 30 days after the entry of the judgment or order appealed from or 30 days from ...

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