United States District Court, D. Delaware
IN RE ROADHOUSE HOLDING INC., et al., Reorganized Debtors.
ROADHOUSE HOLDING INC., et al., Appellees. WAYNE ENGLISH, Appellant,
before this Court is pro se appellant Wayne
English's Motion for Rehearing (D.I. 25), filed with
respect to the Court's March 22, 2018 Memorandum and
Order (D.I. 23, 24) granting the Reorganized Debtor's
Motion to Dismiss (D.I. 16) the appeal as untimely. For the
reasons set forth below, the Motion for Rehearing is denied.
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"), and 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
(B.D.I. 815). On May 25, 2017, the Bankruptcy Court entered a
Memorandum Order denying the Reconsideration Motion (B.D.I.
825) ("Final Order"). The deadline for filing the
appeal was June 8, 2017. See Fed. R. Bankr. P.
8002(a). The appeal was docketed on June 12, 2017, eighteen
days after entry of the final order. (B.D.I. 840).
August 25, 2017, Reorganized Debtor filed its Motion to
Dismiss the appeal as untimely. (D.I 16). Appellant's
Opposition to the Motion to Dismiss attached as an exhibit
what purports to be tracking results from the United States
Postal Service ("USPS") and argued, inter
alia, that "unexplained delays" resulted in
the untimely filing. (See D.I. 18). Based on the
USPS tracking results, Appellant argued that, "[a]fter
receiving [the] notice of appeal on Thursday June 8th, 2017,
the clerk did not file the notice until Monday June 12, 2017.
The delay was the direct result of the clerk not filing the
notice in a timely manner." (Id. at 14).
According to the USPS tracking results, the document was
still in transit ("Departed USPS Regional
Facility") on June 8, 2017 at 7:10 p.m. (at a time after
the Clerk's Office had closed); was not "Available
for Pickup" until June 9, 2017; and was not
"Delivered" until 7:03 a.m. on June 12, 2017.
(See Id. at Ex. 2). Assuming the truth of the
information set forth therein, the Court issued the
Memorandum and Order dismissing the appeal as untimely. (D.I.
24). Appellant's other arguments regarding calculation of
the deadline lacked merit and were rejected by the Court.
(See D.I. 23 at 6-8).
April 5, 2018, 2016, Appellant filed the Motion for
Rehearing. (D.I. 25). The Motion for Rehearing is fully
briefed. (See D.I. 26, 27).
JURISDICTION & STANDARD OF REVIEW
motion for rehearing may be granted under Bankruptcy Rule
8022 if: (1) the court has patently misunderstood a party,
(2) the court has made a decision outside the adversarial
issues presented by the parties; (3) the court has made an
error not of reasoning but of apprehension; or (4) there has
been a controlling or significant change in the law or facts
since the submission of the issue to the Court. See Lau
v. Bank of America, N.A. (In re Lau), 684 Fed.Appx. 235,
239 (3d Cir. 2017). Reargument and reconsideration requests
"are not a substitute for an appeal from a final
judgment" nor are they an opportunity for "endless
debate between the parties and the Court." See
Brambles USA, Inc. v. Blocker, 735 F.Supp. 1239, 1240
(D. Del. 1990) (internal citations omitted). Reargument
should not be granted where it would merely "allow
wasteful repetition of arguments already briefed, considered,
and decided." Id. (citing Weissman v.
Fruchtman, 124 F.R.D. 559, 560 (S.D.N.Y. 1989).
is well settled that a notice of appeal or a petition for
review is filed once the Court of Appeals receives actual
custody of the document." City of Chicago v. U.S.
Dep't of Labor, 737 F.2d 1466, 1471 (7th
Cir. 1984). In most circumstances, the date stamped on the
notice of appeal will be the date of filing. In re
Syntax-Brillian Corp., 610 Fed.Appx. 132, 134 (3d Cir.
2015). However, the Third Circuit has previously observed
that the date stamped on the notice of appeal by a court
clerk is not always conclusive of the date of filing.
See, e.g., United States v. Solly, 545 F.2d 874, 876
(3d Cir. 1976) (construing Fed. R. App. P. 4). In
Solly, the defendant claimed that the clerk's
office received his notice of appeal on the last day for
filing, by certified mail, but that it was not entered on the
docket until five days later. Id. The Third Circuit
determined that "whenever a notice of appeal is filed in
a district court, it is filed as of the time it is actually
received in the clerk's office even though it is
designated as filed by the clerk's office at a later
date." Id. Otherwise, "the timeliness of
the filing would be under the control of the personnel of the
clerk's office rather than the appellant."
argues that rehearing should be granted because (i) the Court
misapprehended the information contained in the USPS tracking
results and/or (ii) there has been a change in facts since
the submission of the issue to the Court based on the
information obtained from the USPS, Delaware Postmaster, and
Bankruptcy Court employees. (See D.I. 25 at 3-4;
D.I. 27 at 2). According to Appellant, the Bankruptcy Court
obtained custody of the Notice of Appeal when it was
redirected on June 8, at the Bankruptcy Court's
instruction, to a "customer mail receptacle" and
held for later courier pick up. (See D.I. 25 at 3).
Appellant has provided the USPS tracking results and a sworn
affidavit in support of his argument that the Notice of
Appeal, while being redirected on June 8 to the customer mail
receptacle for eventual pick up by the courier, was at all
times in the custody of the Clerk, and was therefore timely
filed. (See D.I. 27 at Ex. 1 & 2).
has provided a sworn affidavit asserting new facts, based on
conversations with a customer service supervisor at the USPS,
the Delaware postmaster, and the Bankruptcy Court, regarding
the "unexplained delay" which resulted in the late
filing of the Notice of Appeal. (See D.I. 27 at Ex.
2). Appellant asserts that all mail addressed to the
Bankruptcy Court's physical address is redirected to a
"customer mail receptacle" for later courier
pick-up, rather than going out for normal delivery. (See
Id. at Ex. 2, p. 2). Pursuant to a separate agreement
with local courier "Parcels," the courier picks up
the mail from the customer mail receptacle once each
non-holiday weekday morning and delivers the mail to the
Bankruptcy Court. (Id. at 2; see also D.I.
25 at 3). Any mail received after 8:00 a.m. is not picked up
by Parcels until the following non-holiday weekday morning.
(Id. at 2; see also D.I. 25 at 3).
argues that the redirection by the Bankruptcy Court is also
reflected on the USPS tracking sheet. (See D.I. 27
at Ex. 1). The tracking information provided by Appellant
shows that the item arrived on Thursday, June 8 at 8:05 a.m.
at the USPS Regional Destination Facility at the Wilmington,
DE Distribution Center. (Id.) According to
Appellant, the tracking information demonstrates that the
item "Departed USPS Regional Facility" at 7:10 p.m.
- more than eleven hours later - and "Arrived at
Unit," i.e., the customer mail receptacle, the
following day, on Friday, June 9 at 1:02 p.m. (Id.)
Although the item was made "Available for pick up"
at 2:58 p.m. that same day, items received in the Bankruptcy
Court's customer mail receptacle after 8:00 a.m. are not
retrieved by ...