United States District Court, S.D. New York
April 23, 2014
In Re: SOUNDVIEW ELITE LTD., et al., Debtors. ALPHONSE FLETCHER, JR., and GEORGE E. LADNER, Appellants,
WILLIAM K. HARRINGTON, et al., Appellees
Alphonse Fletcher, Jr., Appellant, Pro se, San Francisco, CA.
George E. Ladner, Appellant, Pro se, Davidson, NC.
For William K. Harrington, Appellee: Noah Mariano Schottenstein, LEAD ATTORNEY, Department of Justice, Washington, DC; Richard Charles Morrissey, U.S. Dept. of Justice -- Office of The U.S. Trustee, New York, NY.
For Peter Anderson, as the Joint Official Liquidators of the Limited Debtors, Matthew Wright, as the Joint Official Liquidators of the Limited Debtors, Appellee: Gary Solomon Lee, Morrison & Foerster, New York, NY.
For Pasig Ltd., Appellee: Jeffrey Gleit, Kasowitz, Benson, Torres & Friedman, LLP, New York, NY.
OPINION AND ORDER
J. PAUL OETKEN, United States District Judge.
Pro se Appellants Alphonse Fletcher, Jr. and George E. Ladner bring this bankruptcy appeal under 28 U.S.C. § 158. Appellee William K. Harrington, United States Trustee, moves to dismiss the appeal for lack of subject matter jurisdiction. For the reasons that follow, that motion is granted.
The following facts are relevant to the Court's jurisdiction. These facts are taken from the record and are undisputed unless otherwise noted.
Appellants are the sole directors of a series of mutual funds (collectively, the " debtors" ) that filed for Chapter 11 bankruptcy relief on September 24, 2013. On January 23, 2014, the Bankruptcy Court for the Southern District of New York entered an Order for the appointment of a Chapter 11 trustee over Appellants' objections. Fifteen days later, at 2:00 a.m. EST, February 7, 2014, Appellants emailed a notice of bankruptcy appeal (" notice" ) to the Appellees and the Bankruptcy Court. Because Appellants were on the west coast, as they understood it, the email was sent at 11:00 p.m. PST, February 6, 2014, or fourteen days after the Order was entered. The body of the email stated:
Attached is a notice of appeal from Alphonse Fletcher, Jr., pro se , and George E. Ladner, pro se , the directors of Soundview Elite, Ltd., et al. We will quickly correct any procedural missteps or make any revisions as we become aware of them. We prepared this without the assistance of Debtors' counsel.
Trustee Brief, Ex. A.) The Bankruptcy Court's docket report reflects that the notice was " Filed 02/07/14." (Case No. 13-13098, Dkt. No. 172.)
The Trustee argues that Appellants missed the 14-day window for filing a notice of appeal, and, because the timeliness requirements are statutory and jurisdictional, the late filing strips the court of jurisdiction to hear this appeal. It is true
that district courts' jurisdiction to hear bankruptcy appeals is circumscribed by 28 U.S.C. § 158(c)(2), which provides that bankruptcy appeals must be filed " in the time provided by Rule 8002 of the Bankruptcy Rules." In re Siemon , 421 F.3d 167, 169 (2d Cir. 2005) (" [I]n the absence of a timely notice of appeal . . . the district court is without jurisdiction to consider the appeal . . . ." ); see also In re Indu Craft, Inc., 749 F.3d 107, 2014 WL 1386655, (2d Cir. Apr. 10, 2014) (abrogating In re Siemon but still recognizing that the " time limits . . . prescribed by statute for appeals to district courts acting as appellate courts over bankruptcy matters" are jurisdictional).
Rule 8002 contains two relevant provisions on timeliness. First, Rule 8002(a) creates a 14-day default filing period. Given the February 7, 2014 filing date, Appellants' notice clearly fails under Rule 8002(a). But the analysis does not end there. Rule 8002(c)(2) empowers district courts to extend the filing period beyond the 14-day baseline. Appellants must file written motions to request such extensions, and " upon a showing of excusable neglect" these motions may be filed up to 21 days after the initial 14-day period has passed. Because district courts may grant extensions, they have the capacity under Rule 8002(c)(2) to alter the time restrictions that constrain their jurisdiction.
Appellants argue that the body of their email should be construed as a
motion for a one-day extension, which this Court should grant retroactively or nunc pro tunc , thereby making the notice of appeal timely under Rule 8002(c)(2). First, the Court must determine whether an extension was properly requested. Courts should not impose overly formal filing requirements. Cf. Adelson v. Harris , 12 Civ. 6052 (JPO), 973 F.Supp.2d 467, 2013 WL 5420973, at *21 (S.D.N.Y. Sept. 30, 2013) (extending a deadline for filing notice nunc pro tunc where litigants failed to file a formal notice, but included a footnote in briefings that effectively provided the required notice). However, Rule 8002(c)(2) requires a " written motion" which should, at the very least, put opposing parties on notice that an extension has been requested. Appellants' email simply states that Appellants would " quickly correct any procedural missteps or make any revisions as we become aware of them." It does not mention an extension.
Where timeliness determines whether jurisdiction exists over an appeal, this Circuit has recognized that the distinction between a motion to extend time and a substantive filing can be collapsed. Green v. United States , 260 F.3d 78, 83 (2d Cir. 2001) (noting, in a habeas corpus case, that " a district court is empowered, and in some instances may be required" to treat a motion " nominally seeking an extension of time . . . as a substantive motion for relief" ). Therefore, the Court will also look to the notice itself to see if an extension was requested. If Appellants had filed a notice of bankruptcy appeal with a meritorious request for a Rule 8002(c)(2) extension stated on its face, the court would be splitting hairs to require separate filings for the notice and the motion, or, in the alternative, to require that the motion be filed qua motion with the notice attached as an exhibit. Although Apellants did not explicitly request an extension, their intent to file notice was clear and, applying the standard that is appropriate for pro se litigants, a request for an extension may be implied from these facts. Bankruptcy law's notice provision is designed to ensure that parties will be notified when an Order is contested; the extension provision is meant to protect appellants and mitigate the harshness of a bright-line rule. See Fed. R. Bankr. P. 8002 Advisory Committee Notes (observing that Rule 8002(c) was amended in 1997 " to protect parties . . . from the harshness of the [then-]present rule" ). The balance that courts must achieve between these competing goals is not well-served by a hypertechnical focus on the labels of filings.
In any event, even if the email and notice are construed as a Rule 8002(c)(2) extension request, Appellants fail to meet the legal standard for " excusable neglect." Excusable neglect is a context-specific equitable concept that requires consideration of all relevant circumstances including:
 the danger of prejudice to the [non-movant],  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.
Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003) (quoting Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P'ship , 507 U.S. 380, 385, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). The emphasis falls on the third factor. Id . Appellants' notice and email state no facts or arguments that excuse a late filing. Although " pro se status is relevant in determining whether there has been excusable neglect," such status alone is insufficient for a finding of excusable neglect. Myers v. New York City Human Rights Comm'n , 04 Civ. 00543 (JCF), 2006 WL 2053317, at *2 (S.D.N.Y. 2006) (collecting pro se cases where the excusable neglect standard was not met). Accordingly, Rule 8002(c)(2) is inapplicable and this appeal fails for a lack of subject matter jurisdiction.
For the foregoing reasons, the Trustee's motion to dismiss the appeal is GRANTED. The Clerk of the Court shall close the motion at docket number 5 and terminate this case.