United States District Court, D. Delaware
IN RE PARAGON OFFSHORE PLC, Debtor.
PARAGON OFFSHORE PLC, Appellee. MICHAEL HAMMERSLEY, Appellant,
appeal arises from a Bankruptcy Court order (Bankr. D.I.
2068) (''Partial Sanctions Order"),
which granted, in part, a motion for sanctions (Bankr. D.I.
2048) against pro se appellant Michael Hammersley
("Appellant") in the chapter 11 case of Paragon
Offshore PLC ("Appellee"). Pending before this
court is Appellee's motion to dismiss (D.I. 8)
("Motion to Dismiss"), which argues that the court
lacks jurisdiction to consider this appeal because Appellant
failed to file his notice of appeal within the 14-day period
prescribed by Rule 8002(a) of the Federal Rules of Bankruptcy
Procedure ("Bankruptcy Rules") and because the time
to move the Bankruptcy Court for an extension of time under
Bankruptcy Rule 8002(d)(1) has also expired. Related to the
appeal, Appellant has filed a Motion for Permission to
Participate in Electronic Case Filing (D.I. 10) ("Motion
for Permission"), which is unopposed. For the reasons
set forth below, the Motion to Dismiss is granted, the appeal
is dismissed for lack of jurisdiction, and the Motion for
Permission is denied as moot.
a hearing on January 30, 2018, the Bankruptcy Court entered
the Partial Sanctions Order which determined that Appellant
had "violated [Bankruptcy Rule 9011] by repeatedly
making duplicative claims that are (a) not warranted by
existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the
establishment of new law; and (b) not supported by
allegations and other factual contentions that have
evidentiary support." (Bankr. D.I. 2068). The Bankruptcy
Court ordered, inter alia: "Effective as of the
date of this Order, any further documents, whether in the
form of a motion, notice, or otherwise, submitted to the
Court in these bankruptcy cases by [Appellant] will be
docketed but will not be considered nor acted upon by the
Court." (Id. at 2). Additionally, "Neither
the Debtors nor any other party in interest are required to
respond to any documents or notices filed or served by
[Appellant] in these bankruptcy cases." (Id.)
On February 14, 2018, Appellant filed his notice of appeal of
the Partial Sanctions Order, as reflected by the date-stamped
copy docketed by the clerk. (See D.I. 1). On
February 27, 2018, the court entered an order withdrawing the
appeal from mediation, setting a briefing schedule on the
Motion to Dismiss, and staying briefing on the merits pending
a decision on the Motion to Dismiss. (D.I. 5). No party has
requested oral argument, and the Motion to Dismiss is fully
briefed. (D.I. 8, 9, 11).
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). 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 Bankruptcy 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." 11 U.S.C. § 158. 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.
Third Circuit has held on several occasions that the time
limits of Bankruptcy Rule 8002 are jurisdictional and deprive
an appellate court of subject matter jurisdiction if the
appellant fails to comply. See In re Caterbone, 640
F.3d 108, 111-12 (3d Cir. 2011) (citing S'holders v.
Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997);
Whitemere Dev. Corp. v. Cherry Hill Twp., 786 F.2d
185, 187 (3d Cir. 1986); In re Universal Minerals,
Inc., 755 F.2d 309, 312 (3d Cir. 1985)). In
Caterbone, the court stated:
Because 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 its requirement statutory
and, hence, jurisdictional and non-waivable.
Caterbone, 640 F.3d at 112-13; see also Bowles
v. Russell, 551 U.S. 205, 209 (2007) ("This Court
has long held that the taking of an appeal within the
prescribed time is 'mandatory and
jurisdictional.'") (quoting Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 61 (1982)).
undisputed between the parties that the Partial Sanctions
Order was entered by the Bankruptcy Court on January 30,
2018. It is further undisputed that Appellant filed his
notice of appeal from the Partial Sanctions Order on February
14, 2018. (See D.I. 1). In deciding the Motion to
Dismiss, the sole issue before the court is whether February
14, 2018 falls outside of the 14-day period as calculated
under the Bankruptcy Rules.
argues that Bankruptcy Rule 9006(a)(1) governs the
computation of the 14-day and requires the court to
"exclude the day of the event that triggers the
period" - i.e., January 30, 2018, or the day
the Partial Sanctions Order was entered. (D.I. 9 at 1-2).
Appellant argues: "This would mean that the triggering
event of January 30, 2018 would be excluded and the 14-day
period begins on January 31, 2018." (Id. at 2).
According to Appellant, "Appellee mistakenly believes
that the triggering date starts the 14-day period when in
fact it is the day after the triggering event."
(Id. at 8).
court agrees that, in accordance with Bankruptcy Rule 9006,
the day of the triggering event - entry of the Partial
Sanctions Order on January 30 - is excluded for calculating
the 14-day deadline. However, as Appellee correctly argues,
the 14-day period beginning on January 31 expired on February
13 - not February 14, as Appellant asserts. (See
D.I. 11 at 3). Here, the notice of appeal was filed on
February 14 - after the expiration of the 14-day period
provided by Bankruptcy Rule 8002(a), and it is therefore
untimely. Universal Minerals, 755 F.2d at 312
("Failure to file a timely notice of appeal . . .
deprives the district court of jurisdiction to review the
bankruptcy court's order or judgment"); In re
Residential Capital, LLC, 519 B.R. 606, 610 (S.D.N.Y.
2014) ("Compliance with Rule 8002(a) is jurisdictional,
and in the absence of a timely notice of appeal in the
district court, the district court is without jurisdiction to
consider the appeal, even in the case of a pro se
litigant"; holding that a notice of appeal filed one day
late by pro se litigant was untimely and the appeal
must be dismissed for lack of jurisdiction) (internal
quotation marks omitted).
no motion for relief or showing of excusable neglect was made
within the 21-day time period set forth in Bankruptcy Rule
8002(d)(1)(B), which expired on March 6, 2018, and
"[t]he rule does not allow a party to claim excusable
neglect after the [time period] ha[s] expired."
Caterbone, 640 F.3d at 114 (quoting
S'holders, 109 F.3d at 879 (internal citations
omitted)); see also In re Rivera,580 B.R. 432, 437
(Bankr. E.D. Pa. 2017) (stating "The Third Circuit has
made clear that a late notice of appeal alone shall not be
construed as a motion to extend the time to ...