UNITED STATES COURT OF APPEALS
For the Fifth Circuit
97-20836
Summary Calendar
IN THE MATTER OF RICHARD NELSON SANDERS
Debtor.
Lowell T. CAGE, Trustee
Appellant,
versus
Robert OVERBECK; PIC-RITE MANAGEMENT
& CONSULTING, INC.,
Appellees.
IN THE MATTER OF RICHARD NELSON SANDERS
Debtor.
Richard Nelson SANDERS, also known as Rick
Sanders, also known as Richard N. Sanders;
CHAIN OPERATORS PRODUCE PLAN, INC.,
Appellant,
versus
Robert OVERBECK; PIC-RITE MANAGEMENT
& CONSULTING, INC.,
Appellees.
Appeals from the United States District Court
for the Southern District of Texas
(H-96-CV-4115)
November 19, 1998
Before HIGGINBOTHAM, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
Appellants Lowell Cage, Richard Sanders, and Chain Operators
Produce Plan, Inc. (“Appellants”) appeal the bankruptcy and
district court’s denial of their motion to extend the time to
appeal.
Overbeck and Sanders were involved in litigation in the
bankruptcy court concerning whether Sanders’ debts owed to Overbeck
were dischargeable and other issues. The bankruptcy court entered
a final judgment on October 7, 1996, and resolved all claims in
favor of Overbeck.
On October 21, 1996, fourteen days after the final judgment,
the Appellants filed a Notice of Appeal and a Motion to Extend Time
to File Notice of Appeal. On October 25, the court denied the
extension of time to appeal because the motion was filed four days
late. Bankruptcy Rule 8002(a) states that a notice of appeal shall
be filed with in 10 days of the date of entry of judgment.
The Appellants do not dispute the fact that the motion and
notice was filed late, they argue that the bankruptcy court
wrongfully denied the Motion to Extend Time to File Notice of
Appeal. They urge that the mistake of filing late was “excusable
neglect” under Bankruptcy Rule 8002(c). See In the Matter of
Christopher, 33 F.3d 232 (5th Cir. 1994). They claim that the
error occurred because the attorney filing the appeal confused the
Federal Rules of Civil procedure with the Bankruptcy Rules --
weekends are counted in the Bankruptcy Rules when calculating a
filing period and they are not in the Federal Rules.
The authority that the Appellants cite for the late filing to
under the limited circumstances set forth in 5th cir. R. 47.5.4.
be “excusable neglect” is Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnerships, 507 U.S. 380, 113 S.Ct.
1489 (1993). The Supreme Court in Pioneer held that counsel’s
negligence and inadvertence can be “excusable neglect.” The Court
stated:
[T]he determination is at bottom an equitable one, taking
into account of all relevant circumstances surrounding
the party’s omission. These include . . . the danger of
prejudice to the debtor, 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. Id. at 394, 1498.
The Court, however, also mentioned in Pioneer that
“inadvertence, ignorance of the rules, or mistakes construing the
rules do not usually constitute ‘excusable’ neglect.” Id. at 392,
1496. Therefore, the appellant’s reason for missing the filing
deadline, confusing the Bankruptcy Rules and the Federal Rules of
Civil Procedure, does not constitute “excusable neglect.”
Taking into consideration the aforementioned reasons, we
affirm the judgments of the lower courts.
AFFIRMED.