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In re Alibicocco

September 13, 2006


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


By Memorandum and Order dated August 16, 2006, this Court dismissed Debtor's appeal from an Order of the Honorable Stan Bernstein, United States Bankruptcy Judge, approving a stipulation of settlement between the Trustee and several creditors of the Debtor's estate. See Albicocco v. Albicocco (In re Albicocco), No. 06-CV-3409 (JFB), 2006 WL 2376441, at *10 (E.D.N.Y. Aug. 16, 2006). The Court found that dismissal was warranted on either of two alternative grounds, that: (1) Debtor failed to timely comply with the filing requirements under Rule 8006 of the Federal Rules of Bankruptcy Procedure, and (2) Debtor lacked standing to prosecute the appeal because he failed to satisfy his burden of demonstrating solvency. See id., at *10. Debtor has filed a Notice of Appeal of that Order to the United States Court of Appeals for the Second Circuit, and in the instant motion, seeks a stay pending that appeal.*fn1 For the reasons stated below, Debtor's application for a stay pending appeal is denied. The Court, however, grants a temporary stay so that the Debtor may seek a stay pending appeal from the United States Court of Appeals for the Second Circuit.


In determining whether or not to grant a motion for a stay pending appeal, a district court must consider: "(1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated `a substantial possibility, although less than a likelihood, of success' on appeal, and (4) the public interests that may be affected." Hirschfeld v. Bd. of Elections in the City of N.Y., 984 F.2d 35, 39 (2d Cir. 1993) (quoting Dubose v. Pierce, 761 F.2d 913, 920 (2d Cir. 1985)); see also Drywall Tapers and Pointers of Greater New York, Local 1974 v. Local 530 of the Operative Plasters' and Cement Masons' Int'l Assoc., AFL-CIO, No. 93-CV-0154 (JG), 2005 WL 638006, at *12 (E.D.N.Y. Mar. 17, 2005). The party seeking a stay pending appeal bears the burden of proving an entitlement to the stay. United States v. Private Sanitation Industry Ass'n of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir. 1995) ("A party seeking a stay of a lower court's order bears a difficult burden."); see also Clarett v. National Football League, 306 F. Supp. 2d 411, 412 (S.D.N.Y. 2004) (denying application for stay because movant failed to meet burden to prove entitlement to stay); Neely v. Pension Trust Fund of the Pension, Hospitalization and Benefit Plan of the Electrical Industry, No. 00-CV-2013 (SJ), 2003 WL 21448872, at *1 (E.D.N.Y. June 4, 2003) (denying application for stay because movants did not satisfy "high burden" placed upon them).*fn2


Debtor's application fails to cite the standard for awarding a stay pending appeal, and only discusses his disagreement with the merits of this Court's dismissal of his appeal.*fn3 The Debtor's argument thus only addresses the third criterion in the standard, the substantial possibility of success on the merits. Putting aside momentarily the Debtor's failure to address the other criteria in the standard, the Court proceeds to consider the argument he actually did advance, and finds it to be without merit.

A. Substantial Possibility of Success on the Merits

As a threshold matter, the Court dismissed debtor's appeal for two alternative independent reasons: (1) failure to comply with the requirements of Rule 8006 of the Federal Rules of Bankruptcy Procedure; and (2) lack of standing to appeal for failure to demonstrate solvency. See Albicocco, 2006 WL 2376441, at *10. With respect to the second ground for dismissal, the Court noted that Debtor's argument that he was solvent relied upon his claim that his state lawsuit against various creditors of his estate was worth millions of dollars far exceeding the amount of his debt. See id. at *9. The Court rejected this claim, noting that the claims were valueless as barred by res judicata for two alternative reasons: (1) the claim had been previously raised in an adversary proceeding that he commenced in the Port Dock and Stone Corporation ("PDSC") bankruptcy case, and was dismissed on the merits based on the "unclean hands" doctrine which Debtor failed to appeal;*fn4 and (2) the disposition of the assets at issue in the state lawsuit had been resolved by settlement in the PDSC case, which Debtor failed to object to, and has become final.*fn5 Thus, since all of these constitute independent alternative grounds for dismissal, in order for Debtor to prevail on appeal, he would be required to demonstrate that this Court erred in making all three determinations: (1) that dismissal based on Rule 8006 was warranted; (2) that the dismissal of his adversary action based on the unclean hands doctrine was entitled to res judicata effect; and (3) that the settlement in the PDSC bankruptcy case was entitled to res judicata effect. As set forth below, the Court finds that Debtor has failed to demonstrate a substantial likelihood of success on even a single one of those determinations.

First, Debtor argues that the Court improperly dismissed the appeal based on failure to comply with the filing requirements of Rule 8006 of the Federal Rules of Bankruptcy Procedure. Under Rule 8006, an appellant has ten days to file his designation of items to be included on appeal and a statement of issues to be presented. See id. at *5. The parties in this case do not dispute that Debtor's Rule 8006 statement was untimely-the only issue is whether the Court should have granted an extension of time, nunc pro tunc, to cure the untimeliness. See id. Under Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure, the Court could accept the untimely submission if the "failure to act was a result of excusable neglect." See id. (quoting FED. R. BANKR. P. 9006(b)(1)). In Lynch v. United States (In re Lynch), 430 F.3d 600, 604-05 (2d Cir. 2005), the Second Circuit held that a district court does not abuse its discretion when it declines to find excusable neglect for failure to comply with Rule 8006 because the filing requirement under that provision is "quite clear," and it was evident that the appellant's attorney "was aware of the deadlines." Based on Lynch, the Court exercised its discretion to decline finding excusable neglect because Debtor's counsel received explicit notice of the requirement by notice provided by the Clerk of the Bankruptcy Court. See id. at *8. As part of the analysis, the Court considered other equitable considerations, including the generally casual attitude that Debtor has displayed to the bankruptcy rules, as well as Debtor's proffered excuses, which the Court rejected as inadequate to overcome the presumption that failure to follow the clear dictates of Rule 8006 did not constitute excusable neglect. See id. at *7-*8 & n.8.

Debtor argues that this Court's decision is contrary to the "timbre of forgiveness" expressed by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Partnership, 507 U.S. 380 (1986). Prior to Pioneer, the Second Circuit "adhered to a firm rule that `[t]he excusable neglect standard can never be met by a showing of inability or refusal to read and comprehend the plain language of the federal rules.'" Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 249-50 (2d Cir. 1997) (quoting In re Cosmopolitan Aviation Corp., 763 F.2d 507, 515 (2d Cir. 1985)). However, Pioneer established a more liberal standard for excusable neglect, noting that it should not "encompass situations in which the failure to comply with a filing deadline is attributable to negligence . . . the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." 507 U.S. at 394-95. Applying these rules, Pioneer affirmed a finding that a district court abused its discretion in declining to find excusable neglect and disallowing a late filing based upon the relevant circumstances surrounding the omission-particularly emphasizing the fact that there was no prejudice to the adverse party in allowing the late claim, and that there was "dramatic ambiguity" in the notification of the deadline, which was set forth in a "peculiar" and "inconspicuous" place. See 507 U.S. at 397-98.

Although the Second Circuit has recognized the fact that Pioneer liberalized the excusable neglect standard, it also highlighted the fact that Pioneer noted that "`inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable neglect.'" Canfield, 127 F.3d at 250 (quoting Pioneer, 507 U.S. at 392). Accordingly, the Second Circuit opined on various situations in which neglect may be excusable, for example, "where the language of a rule is ambiguous or susceptible to multiple interpretations, or where an apparent conflict exists between two rules." Id. However, the Circuit expressed its position that failure to follow a non-ambiguous rule would generally not constitute excusable neglect:

[W]e do not believe that the possibility that a court may properly find excusable neglect on such grounds alters the principle that failure to follow the clear dictates of a court rule will generally not constitute such excusable neglect . . . Where . . . the rule is entirely clear, we continue to expect that a party claiming excusable neglect will, in the ordinary course, lose under the Pioneer test.

Canfield, 127 F.3d at 250-51. Applying this principle, the Second Circuit held inexcusable a late opposition to a summary judgment motion, noting that the relevant deadline was unambiguous, especially in light of the fact the opposing party accurately informed the dilatory party of the requirement in a cover letter accompanying the moving papers. Id. at 251 ("Counsel's failure to read and obey an unambiguous court rule-especially when the opposing party told him what the rule said-was not excusable."). Finding that the district court properly considered this, and rejecting the dilatory party's excuse that he was preoccupied with a bid for public office as well as other relevant considerations, the Second Circuit held that the district court did not abuse its discretion in dismissing the party's claim. See id. Lynch, relied upon by this Court in the motion to dismiss, applied Canfield's gloss on Pioneer to failure to comply with Rule 8006 of the Federal Rules of Bankruptcy Procedure. See 430 F.3d at 604.

The Court finds that the Debtor does not have a substantial likelihood of success in arguing that the Court abused its discretion in its application of the excusable neglect standard under Pioneer. Under both Canfield and Lynch, the Second Circuit has made plain the fact that failure to comply with a clear rule for which a party has explicit notice is not excusable, and a district court possesses the discretion to refrain from finding excusable neglect on that ground. There is nothing incongruent with this principle and Pioneer, which maintained that negligence is not usually excusable, and emphasized in its analysis the ambiguity surrounding the notification of the relevant deadline. See 507 U.S. at 392, 398. In the instant case, the Court is bound by the explicit finding of Lynch that Rule 8006 is unambiguous, and it is undisputed that Debtor received notice of the Rule. Accordingly, this case plainly falls into the scope of Canfield and Lynch, which allows the Court discretion to decline finding excusable neglect. Moreover, as previously mentioned, the Court properly operated in the framework of ...

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