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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13045
________________________
D.C. Docket Nos. 1:11-cv-22050-KMW; 11-17047-AJC
FISHER ISLAND LIMITED,
Plaintiff-Appellant,
versus
FISHER ISLAND INVESTMENTS, INC.,
MUTUAL BENEFITS OFFSHORE FUND, LTD.,
LITTLE REST TWELVE, INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 1, 2013)
Before MARCUS, HILL, and SILER, * Circuit Judges.
SILER, Circuit Judge:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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This appeal arises from a district court order dismissing an appeal from the
bankruptcy court for lack of standing. We affirm.
I.
In 2011, six creditors filed involuntary bankruptcy petitions in the United
States Bankruptcy Court of the Southern District of Florida. The petitions, which
contested the assignment of a promissory note, named Appellee Fisher Island
Investments, Inc. as one of several alleged debtors. Appellant Fisher Island
Limited, a non-party to the underlying bankruptcy litigation, is a partial owner of
Fisher Island Investments, Inc., and among the eleven signatories of the
promissory note. The terms of the note hold its makers liable “for any costs and
expenses incurred . . . in collection upon this Note” and for indemnification
“against any claims of any third party in connection with this Note or its validity,
enforceability or collection.”
Subsequent to the filings, attorneys for the alleged debtors moved the
bankruptcy court to require a bond as potential indemnification for attorney’s fees
pursuant to 11 U.S.C. § 303(e). The bankruptcy court heard arguments on the
motion and required the petitioning creditors to post a $100,000 bond. Fisher
Island Limited did not file a brief or appear at the bond hearing. Following the
court’s decision, the petitioning creditors appealed. On March 22, 2012, the
district court affirmed the bond requirement.
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On May 2, 2012, Fisher Island Limited filed a motion in the district court
requesting an extension of time to file a notice of appeal of the order affirming the
bond. On the following day, Fisher Island Limited filed an appeal. On May 4,
2012, the district court denied Fisher Island Limited’s motion for an extension and
also dismissed its notice of appeal, finding that Fisher Island Limited lacked
standing to appeal. Fisher Island Limited appealed the decision to this court.
II.
Standing is a mixed question of law and fact, and we therefore review the
district court’s determination on standing de novo. Baloco v. Drummond Co., 640
F.3d 1338, 1342–43 (11th Cir. 2011). We review the district court’s orders
regarding Fisher Island Limited’s motions for additional time to appeal for an
abuse of discretion. See Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322,
1325 (11th Cir. 1996). We review the district court’s legal conclusions de novo.
In re Optical Technologies, Inc., 425 F.3d 1294, 1300 (11th Cir. 2005).
III.
The district court properly exercised its jurisdiction by dismissing Fisher
Island Limited’s appeal based on standing pursuant to 28 U.S.C. § 158 and Federal
Rule of Bankruptcy Procedure 8001(a). In re Laurent, 149 F. App’x 833, 835—36
(11th Cir. 2005). Standing is the threshold issue in every federal case. Maverick
Media Grp., Inc. v. Hillsborough Cnty., Fla., 528 F.3d 817, 819 (11th Cir. 2008).
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Fisher Island Limited incorrectly argues that it satisfies the Article III test for
standing, because bankruptcy courts are not Article III courts. 28 U.S.C. § 151(a);
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 53–54
(1982). The person aggrieved doctrine governs standing in a bankruptcy court.
Westwood Comm. Two Ass’n v. Barbee (In re Westwood Cmty. Two Ass’n), 293
F.3d 1332, 1335 (11th Cir. 2002).
Because bankruptcy cases typically affect numerous parties, the person
aggrieved test demands a higher causal nexus between act and injury. Id. A party
must show that it was “directly and adversely affected pecuniarily” by the
bankruptcy court’s order. In re Westwood Comm. Two Ass’n., Inc., 293 F.3d at
1335 (quoting Harker v. Troutman (In re Troutman Enters.), 286 F.3d 359, 364
(6th Cir. 2002)). A party has a financial stake in the order when that order
“diminishes [its] property, increases [its] burdens or impairs [its] rights.” Id.
Fisher Island Limited is not an aggrieved party. We look no further than In
re Westwood to support our conclusion that Fisher Island Limited suffered no
change in its property, burdens or rights as a result of the bond order. In re
Westwood, 293 F.3d at 1332. There, members of a homeowners association were
charged a “special assessment” in order to pay for damages levied against the
association. Id. The damage to the members was not contingent, but caused
directly by a bankruptcy court’s decision to allow damages claims. See 293 F.3d at
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1336 (“This order, in which the bankruptcy court denied reconsidering the allowed
claims, directly and adversely affects pecuniarily the [members] because the
Trustee assessed the . . . members to satisfy these claims.”). Here, the bankruptcy
court ordered the petitioning creditors, not Fisher Island Limited, to post a bond.
The creditors appealed the bond order, claiming to have insufficient funds
available to pay the bond. The creditors did not express in that appeal any
intention to collect monies from Fisher Island Limited, nor has Fisher Island
Limited presented any evidence of such an attempt. The promissory note at issue
in the bankruptcy court requires indemnification of attorney’s fees “in collection
upon this Note” and not in the case of an attempt at collection. Because collection
has yet to occur, the bond is a provisional, not a final, security for those fees. If
collection does not occur, the fees will not be due. Furthermore, the note itself is
the subject of litigation and may not ultimately be binding.
Fisher Island Limited presents no evidence that the creditors have looked,
anticipate looking, or could look to it to satisfy the creditors’ attorney’s fees. Cf.
Cash v. United States, 961 F.2d 562, 565—66 (5th Cir. 1992). Therefore, Fisher
Island Limited does not satisfy the requisite test for standing under the person
aggrieved doctrine and has no standing to appeal the district court’s order.
IV.
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Moreover, Fisher Island Limited filed an untimely notice of appeal, which is
a mandatory prerequisite to the exercise of appellate jurisdiction. Riney, 77 F.3d at
1323. It has not established “excusable neglect or good cause” to justify the late
filing under the requisite Pioneer analysis. 1 Fed. R. App. P. 4(a)(5)(A)(ii); see
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388
(1993). Fisher Island Limited filed its notice of appeal six days late. Length of
delay and extent of disruptiveness to the judicial proceedings is not the only
consideration permitted by the court. The evaluation also takes into account the
party’s explanation of the delay. Id. at 395. Fisher Island Limited claims that it
did not receive notice of the district court’s March 22 order until April 24, 2012. It
cites Capitol Indemnity Corp. v. Heidkamp (In re Steve A. Clapper & Assoc. of
Florida), 346 B.R. 882, 886 (Bankr. M.D. Fla. 2006), as support for its argument
that late notice to counsel of an order “could be interpreted as excusable neglect.”
While “late notice” is one possible excuse, the district court in In re Clapper did
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We consider the following factors to determine whether there is excusable neglect: (1) the
danger of prejudice to the nonmovant; (2) the length of the delay and its potential impact on
judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable
control of the movant; and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co.,
507 U.S. at 395; see Riney, 77 F.3d at 1323 (applying the Pioneer test in the context of motions
to extend time to appeal). The factors are non-exclusive, and the test requires an equitable
determination taking account of all the relevant circumstances surrounding the party’s omission.
In re Banco Latino Intern, 310 B.R. 780 (S.D. Fla. 2004), summarily aff’d, 404 F.3d 1295 (11th
Cir. 2005). The test permits the exercise of discretionary judgment and is not “mechanical,”
Riney, 77 F.3d at 1324, so long as that choice does not constitute a clear error of judgment.
United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989).
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not find it to be a valid excuse. Id. In addition, the party in Clapper seeking an
extension of time to file a notice of appeal was a Chapter 11 appointed trustee. Id.
Fisher Island Limited had reason to monitor orders issued by the district
court, because it had earlier appealed a separate order of the court. In addition,
counsel is required to pay heed to impending deadlines and filings that must be
made to protect the client’s interests. An attorney’s strategic miscalculations do
not qualify as excusable neglect. See, e.g., McCurrent ex rel. Turner v. Adventist
Health System/Sunbelt, Inc., 298 F.3d 586, 593–95 (6th Cir. 2002). Nor does
counsel’s inattention to filing deadlines ordinarily constitute excusable neglect.
See, e.g., In re Celotex Corp., 232 B.R. 493 (M.D. Fla. 1999), aff’d without
opinion, 196 F.3d 1262 (11th Cir. 1999).
The district court justly dismissed the case for lack of standing prior to
reaching the Pioneer analysis. See Vick v. Vick (In re Vick), 233 F. App’x 897, 899
(11th Cir. 2007). Even if the district court had applied the four-factor Pioneer
analysis to the facts at bar, Fisher Island Limited would not have prevailed. The
district court properly denied Fisher Island Limited’s motion and dismissed its
appeal for lack of standing. See Pioneer, 507 U.S. at 397; Cheney v. Anchor Glass
Container Corp., 71 F.3d 848, 850 (11th Cir. 1996).
AFFIRMED.
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