FILED
United States Court of Appeals
Tenth Circuit
May 20, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
In re: RODGER KOLYN LATTURE,
Debtor.
_______________________________
TRACY EMANN,
Plaintiff-Counter-Defendant-
Appellee,
v. No. 09-6016
RODGER KOLYN LATTURE,
Defendant-Counter-Claimant-
Appellant.
APPEAL FROM THE UNITED STATES BANKRUPTCY
APPELLATE PANEL FOR THE TENTH CIRCUIT
(B.A.P. No. WO-08-096)
Submitted on the briefs: *
Sam George Caporal and Mark W. Hayes, Oklahoma City, Oklahoma, for Defendant-
Counter-Claimant-Appellant.
Tom M. Cummings, Oklahoma City, Oklahoma, for Plaintiff-Counter-Defendant-
Appellee.
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Before BRISCOE, Chief Judge, BALDOCK and GORSUCH, Circuit Judges.
BALDOCK, Circuit Judge.
Plaintiff-Appellee Tracy Emann obtained a judgment against Defendant-
Appellant Rodger Latture. Latture subsequently filed for bankruptcy. The
bankruptcy court granted Emann’s motion for summary judgment, finding Emann’s
claim non-dischargeable. The bankruptcy court entered summary judgment for
Emann on November 14, 2008. Latture did not file his notice of appeal with the
Bankruptcy Appellate Panel of the Tenth Circuit (B.A.P.) until November 25,
2008—eleven days after the bankruptcy court entered its judgment—making it one
day out of time according to Fed. R. Bankr. P. 8002(a) and 9006(a). 1 Relying on In
re Herwit, 970 F.2d 709, 710 (10th Cir. 1992), the B.A.P. concluded Latture’s failure
to file a timely notice of appeal was a jurisdictional defect which bars appellate
review and, accordingly, dismissed Latture’s appeal.
Like our sister circuits, we have previously declared a “failure to file a timely
notice of appeal [is] a jurisdictional defect barring appellate review” of a bankruptcy
court’s order. In re Herwit, 970 F.2d 709, 710 (10th Cir. 1992); In re Siemon, 421
F.3d 167, 169 (2d Cir. 2005); In re Bond, 254 F.3d 669, 673 (7th Cir. 2001); Preblich
1
In evaluating Latture’s arguments, we refer to the 2008 version of the Federal
Rules of Bankruptcy Procedure and the Federal Rules of Appellate Procedure.
2
v. Battley, 181 F.3d 1048, 1057 (9th Cir. 1999); In re Universal Minerals, Inc., 755
F.2d 309, 312 (3d Cir. 1985); In re LBL Sports Ctr., Inc., 684 F.2d 410, 412 (6th Cir.
1982). However, recent Supreme Court decisions in Kontrick v. Ryan, 540 U.S. 443
(2004), Eberhart v. United States, 546 U.S. 12 (2005), Arbaugh v. Y&H Corp., 546
U.S. 500 (2006), Bowles v. Russell, 551 U.S. 205 (2007), Reed Elsevier, Inc. v.
Muchnick, 559 U.S. ___, 130 S. Ct. 1237 (2010), as well as our own precedent in
United States v. Garduño, 506 F.3d 1287 (10th Cir. 2007), prompt us to reexamine
In re Herwit’s holding. We acknowledge, as the Supreme Court has as well, that
unfortunately jurisdiction “‘is a word of many, too many, meanings.’” Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 90 (1998) (quoting United States v.
Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)). But after careful review, we
conclude these cases confirm our holding in In re Herwit—the failure to file a timely
notice of appeal from a bankruptcy court’s order constitutes a jurisdictional defect.
We, consequently, affirm the B.A.P.’s dismissal of Latture’s appeal for lack of
jurisdiction.
I.
Upon granting Emann’s motion for summary judgment, the bankruptcy court
entered as docket entry #48:
Memorandum Of Decision And Order Denying Motion For Summary
Judgment (Related Doc # 39) For Defendant Rodger Kolyn Latture,
Granting Motion For Summary Judgment (Related Doc # 42) For
Plaintiff Tracy Emann Signed by Judge Bohanon cc: Judge, Cummings,
Caporal, Matrix service by dcur date: 11/14/2008 (dcur, ca) Date filed
3
corrected by the clerk’s office on 11/14/2008 (dcur, ca). (Entered:
11/14/2008).
The Memorandum itself, however, is dated November 13, 2008. The bankruptcy
court entered as docket entry #49:
Judgment for Plaintiff Tracy Emann Against Defendant Rodger Kolyn
Latture. BKOB # 08-089 For the reasons stated in the Memorandum of
Decision and Order Signed by Judge Bohanon cc: Judge, Matrix service
by dcur date: 11/14/2008. (dcur, ca) (Entered: 11/14/2008).
The Judgment itself, however, is dated November 13, 2008. Then, the docket sheet
lists as entry #50:
BNC Certificate of Mailing. (RE: related document(s) 48 Order on
Motion For Summary Judgment) No. of Notices: 0. Service Date
11/16/2008. (Admin.) (Entered: 11/17/2008)
And, as entry #51 it lists:
BNC Certificate of Mailing. (RE: related document(s) 49 Judgment) No.
of Notices: 0. Service Date 11/16/2008. (Admin.) (Entered:
11/17/2008).
Fed. R. Bankr. P. 9021 provides “[a] judgment or order is effective when
entered under Rule 5003.” Rule 5003, in turn, provides the bankruptcy court clerk
“shall keep a docket in each case . . . and shall enter thereon each judgment, order,
and activity in that case. . . . The entry of a judgment or order in a docket shall show
the date the entry is made.” Fed. R. Bankr. P. 5003(a). As we have explained on
multiple occasions:
“The signing of the order or judgment by the judge does not constitute
an ‘entry’ by the judge. The entry occurs when it is noted on the docket
and thereby becomes public. . . . A document is entered when the clerk
4
makes the notation on the official public record, the docket, of the
activity or submission of the particular document.”
In re Faragalla v. Access Receivable Mgmt., 422 F.3d 1208, 1210 (10th Cir. 2005)
(quoting United States v. Henry Bros. P’ship, 214 B.R. 192, 195 (B.A.P. 8th Cir.
1997)); see also Herrera v. First Nat’l Sav. & Loan Ass’n, 805 F.2d 896, 899 (10th
Cir. 1986) (explaining that the date of entry of an order or judgment is the date it is
recorded on the docket, not the date the order is “filed” or “dated”). Consequently,
the effective judgment in this case was entered as docket entry #49 on November 14,
2008.
At the time this appeal was filed, Rule 8002(a) stated: “The notice of appeal
shall be filed with the clerk within 10 days of the date of the entry of the judgment,
order, or decree appealed from.” Rule 9006(a) also stated:
In computing any period of time prescribed or allowed by these rules or
by the Federal Rules of Civil Procedure made applicable by these rules,
by the local rules, by order of court, or by any applicable statute, the
day of the act, event, or default from which the designated period of
time begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, a Sunday, or a legal
holiday . . . . When the period of time prescribed or allowed is less than
8 days, intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation.
As a result, the tenth day and the last day Latture could have timely filed his notice
of appeal with the B.A.P. was Monday, November 24, 2008.
II.
Latture offers three challenges to this conclusion. First, even using November
5
14 as the date the judgment was entered and applying the rules as we have laid them
out, he claims he had until November 25 to file his notice of appeal. We fear Latture
read Rule 9006(a) improperly. Yes, Rule 9006(a) instructs us to begin counting the
ten days on the day after the judgment was entered: November 15. But, we cannot
just add ten days to November 15 to reach the final day to file the appeal. Instead,
we must look to a 2008 calendar and count ten days, with the first day beginning on
November 15 and the last ending on November 24.
III.
Second, Latture questions whether his failure to timely file an appeal in
compliance with Rule 8002(a) deprives the B.A.P. of jurisdiction to hear his appeal.
In Kontrick, the Supreme Court unanimously held that Fed. R. Bankr. P. 4004(a),
which provides the time limit for filing an objection to a debtor’s discharge, and Fed.
R. Bankr. P. 9006(b)(3), which provides for the enlargement of the time limit under
Rule 4004(a), are not jurisdictional. Kontrick, 540 U.S. at 447, 454–56. The Court
explained “[o]nly Congress may determine a lower federal court’s subject-matter
jurisdiction” but no statute specifies the time limit for filing an objection to a
discharge. Id. at 452–54. In authorizing bankruptcy courts to adjudicate certain
matters, Congress enacted some statutory provisions containing “built-in time
constraints.” Id. at 453. “For example, § 157(c)(1) addresses de novo district court
review of bankruptcy court findings and conclusions in noncore proceedings; that
provision confines review to ‘matters to which any party has timely and specifically
6
objected.’” Id. The Court also provided as another example of a statutory timeliness
condition the thirty day time limit for filing a notice of appeal in a civil case set forth
in 28 U.S.C. § 2107(a) (also found in Fed. R. App. P. 4(a)). Id. at n.8. In contrast,
Congress merely instructs that “‘objections to discharges’ are ‘core proceedings’
within the jurisdiction of the bankruptcy courts” without any “timeliness condition.”
Id. (citing 28 U.S.C. § 157(b)(2)(J)). Because the time limits at issue were only
found in Rules 4004 and 9006 and “‘it is axiomatic’ that [federal procedural] rules
‘do not create or withdraw federal jurisdiction,’” the Court concluded those time
limits are “claim-processing rules that do not delineate what cases bankruptcy courts
are competent to adjudicate.” Id. at 453–54 (quoting Owen Equip. & Erection Co.
v. Kroger, 437 U.S. 365, 370 (1978)). The time limits in claim-processing rules are
subject to forfeiture while time limits in jurisdictional rules may be raised as a
defense at any time during litigation. See id. at 456 (“[A] court’s subject-matter
jurisdiction cannot be expanded to account for the parties’ litigation conduct; a
claim-processing rule, on the other hand, even if unalterable on a party’s application,
can nonetheless be forfeited if the party asserting the rule waits too long to raise the
point.”).
Relying on Kontrick, a unanimous Supreme Court declared in Eberhart that
Fed. R. Crim. P. 33, which provides that a motion for new trial for any reason other
than newly discovered evidence must be filed within seven days after a verdict, is
not jurisdictional, but rather “is a claim-processing rule—one that is admittedly
7
inflexible because of [Fed. R. Crim. P.] 45(b)’s insistent demand for a definite end
to proceedings.” Eberhart, 546 U.S. at 19. The Court explained that “[i]t is
implausible that the Rules considered in Kontrick can be nonjurisdictional
claim-processing rules, while virtually identical provisions of the Rules of Criminal
Procedure can deprive federal courts of subject-matter jurisdiction.” Id. at 16. As
a result, Fed. R. Crim. P. 33 and 45 “assure relief to a party properly raising them,
but do not compel the same result if the party forfeits them.” Id. at 19.
In Arbaugh, the Supreme Court considered “whether the numerical
qualification contained in Title VII’s definition of ‘employer’ affects federal-court
subject-matter jurisdiction or, instead, delineates a substantive ingredient of a Title
VII claim for relief.” Arbaugh, 546 U.S. at 503. Ultimately, the Court held Title
VII’s “numerical threshold does not circumscribe federal-court subject-matter
jurisdiction.” Id. at 504. The numerical threshold appears in a provision separate
from Title VII’s jurisdiction provision and “‘does not speak in jurisdictional terms
or refer in any way to the jurisdiction of the district courts.’” Id. at 515 (quoting
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982)). The Court also
crafted a “readily administrable bright line”—“when Congress does not rank a
statutory limitation on coverage as jurisdictional, courts should treat the restriction
as nonjurisdictional in character.” Id. at 516.
Then, a divided Supreme Court in Bowles explained that federal procedural
rules created by courts and not derived from Congressionally-enacted statutes are not
8
jurisdictional, but are instead claim-processing rules. Bowles, 551 U.S. at 210–13.
Noting that the Court has held for over a hundred years the “taking of an appeal
within the prescribed time is ‘mandatory and jurisdictional,’” it held that Fed. R.
App. P. 4(a)’s thirty-day time limit for filing a notice of appeal in a civil case is a
jurisdictional requirement because Congress specifically limited the amount of time
within which parties may file a notice of appeal in 28 U.S.C. § 2107. Id. at 209–13.
In light of these cases, in Garduño we considered whether Fed. R. App. P.
4(b)(1)(A) and (b)(4), which provide the time limits for filing a criminal appeal, are
jurisdictional or claim-processing rules. Garduño, 506 F.3d at 1288. Unlike the time
limits for filing a notice of appeal in a civil case found in Fed. R. App. P. 4(a)(1)(A)
and 4(a)(6) that are based upon 28 U.S.C. § 2107, Rules 4(b)(1)(A) and 4(b)(4) do
not have statutory grounding. Id. at 1290; see also United States v. Sadler, 480 F.3d
932, 938 n.6 (9th Cir. 2007) (“The only statutory reference to the timing of criminal
appeals we uncovered is at 18 U.S.C. § 3732. Entitled ‘Taking of appeal; notice;
time-(Rule),’ the provision lacks any substantive content. It merely directs readers
to ‘SEE FEDERAL RULES OF CRIMINAL PROCEDURE’. . . . As the historical
notes indicate, [Fed. R. Crim. P.] 37 is now at [Fed. R. App. P.] 3 and 4.”). We
consequently concluded, as many other circuits have, Rules 4(b)(1)(A) and 4(b)(4)
are non-jurisdictional claim-processing rules. Garduño, 506 F.3d at 1290; United
States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009); United States v. Byfield, 522
F.3d 400, 403 n.2 (D.C. Cir. 2008) (per curiam); United States v. Fias, 521 F.3d 229,
9
233–34 (2d Cir. 2008); Sadler, 480 F.3d at 940; United States v. Martinez, 496 F.3d
387, 388–89 (5th Cir. 2007).
Recently, the Supreme Court again waded into the murky waters of
jurisdiction. In Reed Elsevier, the Court determined the Copyright Act’s registration
requirement in 17 U.S.C. § 411(a) “is a precondition to filing a claim that does not
restrict a federal court’s subject matter jurisdiction.” Reed Elsevier, 130 S. Ct. at
1241. The Court stated “[a] statutory condition that requires a party to take some
action before filing a lawsuit is not automatically ‘a jurisdictional prerequisite to
suit.’” Id. at 1246 (quoting Zipes, 455 U.S. at 393). A court’s jurisdictional analysis
must instead focus on the “‘legal character’ of the requirement,” which it may
discern from considering the “condition’s text, context, and relevant historical
treatment.” Id. Moreover, Reed Elsevier specifically clarified that Bowles did not
“hold that all statutory conditions imposing a time limit should be considered
jurisdictional.” Id. at 1249. On the contrary, “Bowles stands for the proposition that
context, including this Court’s interpretation of similar provisions in many years
past, is relevant to whether a statute ranks a requirement as jurisdictional.” Id. at
1247–48.
Applying Bowles, the Court stated “the relevant question here is not . . .
whether § 411(a) itself has long been labeled jurisdictional, but whether the type of
limitation that § 411(a) imposes is one that is properly ranked as jurisdictional absent
an express designation.” Id. at 1248. The statutory limit considered in Bowles was
10
of a type (deadlines for filing appeals) that the Court “had long held did ‘speak in
jurisdictional terms’ even absent a ‘jurisdictional’ label” with nothing about Section
2107’s text, context, or “the historical treatment of that type of limitation” justifying
a departure from this view. Id. In contrast, Section 411(a) does not clearly state its
registration requirement is jurisdictional. Id. at 1245. In fact, Section 411(a)’s
language “says nothing about whether a federal court has subject-matter jurisdiction
to adjudicate claims for infringement of unregistered works.” Id. The Court further
explained that “§ 411(a)’s registration requirement, like Title VII’s numerosity
requirement [considered in Arbaugh], is located in a provision ‘separate’ from those
granting federal courts subject-matter jurisdiction over those respective claims.” Id.
at 1245–46. And, though some courts had historically treated Section 411(a) as
jurisdictional, these other factors demonstrate that its registration requirement is
nonjurisdictional. Id. at 1248.
Only three courts to our knowledge have explicitly discussed the implications
of Kontrick and its progeny to the enforcement of Fed. R. Bankr. P. 8002(a)’s time
limit for filing an appeal. 2 The Third Circuit in In re Taylor, 343 Fed. App’x 753,
2
Since Kontrick, we acknowledge our court as recently as 2009 has applied
Rule 8002(a)’s time limit for filing an appeal as a jurisdictional rule but without
explicitly considering or mentioning the implication of Kontrick, Eberhart, or
Bowles. See Satterfield v. Malloy, 337 Fed. App’x 739, 741 (10th Cir. 2009)
(affirming the B.A.P.’s dismissal of appellant’s appeal because his untimely appeal
caused a jurisdictional defect, citing In re Herwit); Davis v. Citifinancial Auto Corp.,
193 Fed. App’x 736, 738 (10th Cir. 2006) (explaining that the appellant’s attempted
(continued...)
11
755 (3d Cir. 2009), reevaluated its longstanding rule that failure to file an appeal
within the time set forth in Rule 8002(a) divests an appellate court of jurisdiction.
The court concluded that “unlike the rules [the Supreme Court has] held
non-jurisdictional . . . Fed. R. Bankr. P. 8002(a)’s time limit has its roots in a
congressionally-enacted statute.” Id. at 755 n.1. To support this conclusion, the
Third Circuit cited Rule 8002 Advisory Committee’s Notes which state that Rule
“8002 is an ‘adaptation’ of Fed. R. App. P. 4(a)” and noted that the Supreme Court
held in Bowles that Fed. R. App. P. 4(a)’s time limit for filing a notice of appeal in
a civil case derives from 21 U.S.C. § 2107. Id.
The Tenth Circuit B.A.P. has also recently wrestled with Rule 8002(a)’s
questionable jurisdictional status in In re Kingsley, 423 B.R. 344 (B.A.P. 10th Cir.
2010). The B.A.P. cited 28 U.S.C. § 158(c)(2)’s “in the time provided by Rule
8002” language and explained that “[t]he Bowles decision appears to hold that a rule
governing the time for appeal, which is backed by a statute, particularly one that has
2
(...continued)
appeal of the bankruptcy court’s order to the district court was untimely and,
therefore, the district court lacked jurisdiction to hear the appeal); Hunt v. Giuliano
& Father Const., 160 Fed. App’x 670, 673 (10th Cir. 2005) (stating that district court
lacked jurisdiction to hear appellant’s appeal from the bankruptcy court because he
failed to comply with Rule 8002(a)’s time requirements, citing In re Herwit); In re
Lang, 414 F.3d 1191, 1196 (10th Cir. 2005) (concluding that in the bankruptcy
context “an untimely appeal to an intermediate appellate court . . . precludes a
subsequently reviewing circuit court from reaching the underlying bankruptcy court
ruling” citing In re Herwit); In re Wedel, 102 Fed. App’x 639, 640–41 (10th Cir.
2004) (declaring the failure of the appellant to file a timely appeal of the bankruptcy
court’s order deprived the district court of jurisdiction to hear the appeal).
12
historically been treated as jurisdictional, is jurisdictional.” In re Kingsley, 423 B.R.
at 351. The panel observed the time limit in Section 2107 considered in Bowles
actually specified the time parameter; whereas, Section 158(c)(2) does not. Id. It,
however, concluded this is a distinction without a difference because
Section 158(c)(2) “specifically adopts the time parameters of Rule 8002, and timely
filing a notice of appeal in a bankruptcy case has historically been considered a
jurisdictional requirement.” Id. The B.A.P., therefore, concluded “absent
controlling precedent indicating that the statute must specifically set the time
parameters,” it will continue to treat Rule 8002(a)’s time limit as jurisdictional. Id.
We believe recent Supreme Court cases and our own precedent reaffirm our
holding in In re Herwitt and support the B.A.P.’s conclusion in In re Kingsley that
Rule 8002(a) is jurisdictional. Though the Supreme Court cases have emphasized
the importance of a rule’s derivation from statute, exact symmetry does not seem
necessary. In Kontrick, the Court noted in its analysis of Fed. R. Bankr. P. 4004(a)
that Congress had granted bankruptcy courts jurisdiction to hear objections to
discharges but did not include any “timeliness condition.” Kontrick, 540 U.S. at
453. In contrast, Congress did explicitly include a timeliness condition in 28 U.S.C.
§ 158(c)(2)—the requirement that a notice of appeal be filed within the time
provided by Rule 8002(a). Furthermore, the timeliness requirement contained in
Section 158(c)(2) is located in the same section granting the district courts and
bankruptcy appellate courts jurisdiction to hear appeals from bankruptcy
13
courts—Section 158(a)–(b). Also, as the Court in Bowles noted, “time limits for
filing a notice of appeal have been treated as jurisdictional in American law for well
over a century.” 551 U.S. at 210 n.2. While here, of course, we are dealing with
appeals from bankruptcy court, rather than the civil appeal discussed in Bowles, we
do not believe this distinction makes a difference. As the Third Circuit noted in In
re Taylor, the Advisory Committee Notes accompanying Rule 8002(a) state that the
rule “is an ‘adaptation’ of Fed. R. App. P. 4(a),” which was the very rule addressed
in Bowles. 343 Fed. App’x at 755 n.1. And, Bowles and Reed Elsevier direct us to
look at the Court’s “interpretation of similar provisions.” Reed Elsevier, 130 S. Ct.
at 1248. Finally, we note, as Bowles and Reed Elsevier teach us to do, all circuits
prior to Kontrick and its progeny uniformly treated Rule 8002(a) as jurisdictional.
We note, however, at least one court appears to have taken the opposite point
of view. In Felix v. Felix, 2009 WL 3711483, at *2 (E.D. La. 2009), the district
court concluded it retained jurisdiction over the appellant’s appeal even though he
filed it within eleven rather than ten days, merely stating that Fed. R. Bankr. P. 9030
“states, ‘[t]hese rules shall not be construed to extend or limit the jurisdiction of the
courts or the venue of any matters therein.’ See also Kontrick v. Ryan, 540 U.S.
443, 453–54 (2004).” The Supreme Court explained in Kontrick “[o]nly Congress
may determine a lower federal court’s subject-matter jurisdiction” and, therefore, “‘it
is axiomatic’ that such rules ‘do not create or withdraw federal jurisdiction.’”
14
Kontrick, 540 U.S. at 452–53 (quoting Owen, 437 U.S. at 370). Here, Rule 8002(a)
defines the statutory time period for filing an appeal under Section 158(c)(2), rather
than the reverse. As the Felix court suggests, treating Rule 8002(a) as jurisdictional
arguably conflicts with the principle espoused in Rule 9030 because doing so allows
a bankruptcy rule to set the time within in which a party must file an appeal and,
thereby, allows a bankruptcy rule to affect the subject-matter jurisdiction of a federal
court. But, ultimately this argument fails. It is true that bankruptcy rules alone
cannot create or withdraw jurisdiction. Here, however, it is Section 158(c)(2) that
is determining jurisdiction by incorporating the time limits prescribed in Rule
8002(a). Indeed, the Court in Bowles went so far as to say that “Congress may
authorize courts to promulgate rules that excuse compliance with the statutory time
limits.” Bowles, 551 U.S. at 214. Authorizing courts to make exceptions to
jurisdictional time limits is effectively the same as authorizing courts to set the time
limit in the first instance. For this reason, Rule 9030 does not alter our conclusion
that Rule 8002(a) warrants jurisdictional treatment.
IV.
In addition, Latture argues Bankruptcy Rules 8002(a) and 9006(a) must be
read together with Fed. R. App. P. 6 and 26. Fed. R. App. P. 6(b)(1) provides that
the Federal Rules of Appellate Procedure (with three exceptions, all inapplicable
here) “apply to an appeal to a court of appeals under 28 U.S.C. § 158(d) from a final
judgment, order, or decree of a district court or bankruptcy appellate panel
15
exercising appellate jurisdiction under 28 U.S.C. § 158(a) or (b) . . . .” (emphasis
added). Fed. R. App. P. 26(a)(2) provides that for the purposes of computing time
limits set forth in the Federal Rules of Appellate Procedure, weekends and holidays
are excluded from time limits of eleven days or less. If we applied these two
provisions, Latture’s appeal would be timely because the intervening Saturday and
Sunday would be excluded from the ten-day period. But, of course, the Federal
Rules of Appellate Procedure do not apply to this case because here we have an
appeal from a judgment rendered by a bankruptcy court exercising original
jurisdiction to a bankruptcy appellate panel. By its own terms Fed. R. App. P. 6
does not govern an appeal taken from bankruptcy court to a bankruptcy appellate
panel. The time limits that govern such an appeal are instead set forth in the
Bankruptcy Rules.
V.
Finally, Latture argues he was deprived of an opportunity to file a request for
an extension of time under Rule 8002(c)(2) for excusable neglect, which provides:
A request to extend the time for filing a notice of appeal must be made
by written motion filed before the time for filing a notice of appeal has
expired, except that such a motion filed not later than 20 days after the
expiration of the time for filing a notice of appeal may be granted upon
a showing of excusable neglect.
Latture filed his notice of appeal on November 25. He asserts a clerk from the
B.A.P. contacted him and opposing counsel shortly after he filed his notice of appeal
to discuss its timeliness. According to Latture, neither counsel during that
16
discussion believed the appeal was untimely, but the clerk remained unsure. Then
on December 1, 2008 the B.A.P. docketed Latture’s appeal stating: “Provided no
timely election is filed, this appeal will proceed before the BAP.” But, on December
9, 2008 the B.A.P. issued an “Order to Show Cause Why Appeal Should Not Be
Dismissed as Untimely.” Latture claims that because the B.A.P. docketed his appeal
on December 1, he had no reason to think his appeal was untimely and, therefore, no
reason to think he should file a motion for extension of time for excusable neglect.
Latture further asserts that had he been put on notice his appeal was untimely
he would have received an extension for excusable neglect because the bankruptcy
district court “double entered” its summary judgment order on the docket sheet, the
second entry being docket entry #51 entered on November 17, 2008. He contends
that this “double entry” leads to doubts about the finality of the first entry of
summary judgment and confusion as to the date the court’s judgment was actually
entered. Furthermore, Latture asserts he never received the judgment, docket entry
#51, entered on November 17, 2008. He claims all of these reasons amount to
excusable neglect.
Latture’s arguments on this score are unavailing. First, the B.A.P. docketed
the show cause order on December 9, alerting Latture to the fact that he had untimely
filed his notice of appeal on November 25. Given that Rule 8002(c) allows twenty
days after the last date the notice of appeal could be timely filed, Latture had until
Monday, December 15, 2008 to file a timely motion for extension of time.
17
Therefore, he had at least from December 9, when the B.A.P. alerted him to his
appeal’s untimeliness, to December 15 to file a timely motion for an extension of
time and, yet, he did not file such a motion.
Second, even if he had filed such a motion, we note for the sake of clarity that
the bankruptcy court did not double enter its memorandum of summary judgment and
judgment dismissing the case. Instead, it entered the memorandum of summary
judgement as docket entry #48 on November 14, the judgment dismissing the case
as docket entry #49 on November 14, the certificate of mailing the memorandum of
summary judgment as docket entry #50 on November 16 and the certificate of
mailing the judgment dismissing the case as docket entry #51 on November 17. As
is customary in federal court practice, the certificate of mailing the judgment, docket
entry #51, contained a copy of the one and only judgment dismissing the case. It was
not a second judgment. There was no double entry.
Additionally, Bankruptcy Rule 9022(a) dictates that litigating parties must
keep themselves apprised of the orders of the court because “[l]ack of notice of the
entry does not affect the time to appeal or relieve or authorize the court to relieve a
party for failure to appeal within the time allowed, except as permitted in Rule
8002.” As discussed above, Rule 8002 requires parties to file a motion to extend the
time to file a notice of appeal either before the time for filing the notice has expired
or within twenty days of expiration upon a showing of excusable neglect, neither of
which Latture did. Thus, even assuming Latture did not receive the court’s
18
judgment, the B.A.P. could not extend the time to file a notice of appeal.
For the foregoing reasons, the order of the B.A.P. dismissing Latture’s appeal
as jurisdictionally barred is AFFIRMED.
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