United States District Court, D. Delaware
IN RE ROADHOUSE HOLDING INC., Reorganized Debtor.
ROADHOUSE HOLDING INC., Appellee. WAYNE ENGLISH, Appellant,
before this Court is the Motion to Dismiss Appeal for Lack of
Jurisdiction (D.I. 16) filed by Roadhouse Holding Inc.
("Reorganized Debtor") with respect to a pro
se appeal filed by Wayne English
("Appellant"). The Motion to Dismiss argues that
the Court lacks appellate jurisdiction to consider this
appeal because Appellant failed to file a notice of appeal
within the 14-day period prescribed by Rule 8002(a) of the
Federal Rules of Bankruptcy Procedure ("Bankruptcy
Rules") and failed to request an extension of the
deadline for excusable neglect within the time frame set
forth in Bankruptcy Rule 8002(d)(1). For the reasons set
forth below, the Motion to Dismiss is granted, and the appeal
is dismissed for lack of appellate jurisdiction.
appeal arises out of the chapter 11 cases of the now
Reorganized Debtor and certain affiliates, which were filed
on August 8, 2016 (the "Petition Date"). As of the
Petition Date, Appellant held claims on account of the
Debtors' publicly issued 10.75% Senior Secured Notes due
October 2017 (the "Notes"). He timely filed a proof
of claim on account of his Notes in the chapter 11 cases
(Claim No. 6099) (the "Claim"). The Debtors
objected to Appellant's claim (B.D.I. 625)
("Objection") on the basis that the Indenture Trustee
for the Notes had filed proofs of claim on behalf of all
individual noteholders, including Appellant, and that
Appellant's claim was therefore duplicative of the
Indenture Trustee's proofs of claim. (See Id. at
4-5). On March 22, 2017, the Bankruptcy Court held a hearing
on the Objection as it related to Appellant's claim
specifically and heard argument from Appellant. (See
B.D.I. 799). The same day, the Bankruptcy Court entered an
order sustaining the Objection with respect to
Appellant's Claim. (B.D.I. 790).
April 4, 2017, Appellant filed the Motion for New Trial,
Motion for Rehearing, and Motion to Modify, Correct or Reform
the Judgment Granting Debtors' Fourth Omnibus
(Substantive) Objection to Claims Pursuant to Section 502(b)
of the Bankruptcy Code, Bankruptcy Rules 3003 and 3007, and
Local Rule 3007-1 as to Proof of Claim 6099 Filed by Wayne
English (B.D.I. 806) (the "Reconsideration
Motion"), which was opposed by the Reorganized Debtor
May 25, 2017, the Bankruptcy Court entered a Memorandum Order
denying the Reconsideration Motion ("Final Order").
Appellant's Notice of Appeal of the Final Order was filed
on June 12, 2017, eighteen days after entry of the Final
Order. (B.D.I. 840).
Motion to Dismiss is fully briefed. (D.I. 16, 18, 19).
Appellant filed a motion to strike (D.I. 20) ("Motion to
Strike") the Reorganized Debtor's reply in support
of the Motion to Dismiss (D.I. 19) ("Reply"), on
the basis that the Reply was untimely, and the Reorganized
Debtor filed a response thereto (D.I. 21).
Jurisdiction and Standard of Review.
Court has appellate jurisdiction over all final orders and
judgments from the Bankruptcy Court. See 28 U.S.C.
§ 158(a)(1). Bankruptcy Rule 8002 provides: "Except
as provided in subdivisions (b) and (c), a notice of appeal
must be filed with the bankruptcy clerk within 14 days after
entry of the judgment, order, or decree being appealed."
Fed.R.Bankr.P. 8002(a)(1). Where a party makes a timely
motion in the bankruptcy court (i) to amend or make
additional findings under Bankruptcy Rule 7052, (ii) to alter
or amend the judgment pursuant to Bankruptcy Rule 9023, (iii)
for a new trial under Bankruptcy Rule 9023, or (iv) for
relief under Bankruptcy Rule 9024, "the time to file an
appeal runs for all parties from the entry of the order
disposing of the last such remaining motion."
Fed.R.Bankr.P. 8002(b). The Reconsideration Motion was
disposed of by entry of the Final Order on May 25, 2017.
Therefore, the time for appeal runs from May 25, 2017. Fed R.
Bankr. P. 8002(b). The Third Circuit has held that the
failure to appeal a bankruptcy court's ruling to the
district court within the time period established by
Bankruptcy Rule 8002 deprives the district court of
jurisdiction to hear an appeal. See In re Caterbone,
640 F.3d 108, 113 (3d Cir. 2011).
Final Order denying the Reconsideration Motion was entered on
May 25, 2017. The deadline to file an appeal expired 14 days
later, on June 8, 2017. See Fed. R. Bankr. P. 8002.
The appeal was not filed until June 12, 2017, four days after
the 14-day period under Bankruptcy Rule 8002 had expired.
Although the Bankruptcy Rules alone cannot create or withdraw
jurisdiction, Congress has limited the jurisdiction of this
Court to hear an appeal from a final order of a Bankruptcy
Court by specifically incorporating the time limits of Rule
8002 in the jurisdictional grant to the district courts to
hear appeals from bankruptcy courts. Section 158(c)(2) of
title 28 provides that "an appeal under subsections (a)
and (b) of this section shall be taken in the same manner as
appeals in civil proceedings generally are taken to the
courts of appeals from the district courts and in the time
provided by Rule 8002 of the Bankruptcy Rules."
"[T]he taking of an appeal within the prescribed time is
'mandatory and jurisdictional.'" Bowles v.
Russell, 551 U.S. 205, 209 (2007) (quoting Griggs v.
Provident Consumer Discount Co., 459 U.S. 56,
61 (1982)). The Third Circuit has joined other circuits in
holding that the time limits of Bankruptcy Rule 8002 are
jurisdictional, and the failure to file a timely notice of
appeal creates a jurisdictional defect barring appellate
review. See Caterbone, 640 F.3d at 112-13 & n.5
(citing S'holders v. Sound Radio, Inc., 109 F.3d
873, 879 (3d Cir. 1997)); see also, In re
Sobczak-Slomczewski, 826 F.3d 429, 432 (7th
Cir. 2016); In re Berman- Smith, 777 F.3d
997, 1003 (5th Cir. 2013); In re Latture,
605 F.3d 830, 836-37 (10th Cir. 2010). As the
Third Circuit has explained:
[b]ecause Section 158 ... specifies the time within which an
appeal must be taken - i.e., "in the time provided by
Rule 8002" - that requirement is jurisdictional ...
Here, even though it is a bankruptcy rule that specifies the
time within which an appeal must be filed, the statutory
incorporation of that rule renders ...