Colon-Santana v. Martinez-Malave ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1890
JOSE ENRIQUE COLON-SANTANA,
Appellant,
v.
JULIO MARTINEZ-MALAVE, ET AL.,
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Jose Enrique Colon Santana on brief pro se.
Carlos E. Aquilar Perez and Woods & Woods on brief for appellees.
August 22, 1997
Per Curiam. Jose Enrique Colon-Santana appeals from the
district court's dismissal of his appeal from a bankruptcy
court order imposing costs and attorneys' fees on Colon and
his client. The district court dismissed the appeal and
affirmed the bankruptcy court's denial of appellant's Motion
for Reconsideration of the Judgment ("the Motion") on the
ground that the notice of appeal had been untimely filed.
Appellant concedes that the notice of appeal from the
district court order awarding costs and attorneys' fees ("the
Judgment") was untimely filed under Bankruptcy Rule 8001.
That Rule requires an appeal to be filed within 10 days of
the judgment appealed from. The Judgment was entered on
April 2, 1993. The Notice of Appeal was filed on September
21, 1993. "Untimely notice of appeal deprives the district
court of jurisdiction to review the bankruptcy court's
order." In re Abdallah, 778 F.2d 75, 77 (1st Cir. 1985).
In an effort to overcome this formidable obstacle,
appellant argues that the bankruptcy court abused its
discretion in not granting the Motion. He contends that his
failure to file a timely notice of appeal should have been
excused because the court clerk had mailed notice of entry of
the Judgment to the wrong address and appellant had not
received it until after the appeal period had expired.1
1
1 The appeal to the district court was timely with
1
respect to the bankruptcy court's order denying the Motion,
which order was entered on September 13, 1993.
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1. Bankruptcy Rule 8002(c)
Even if, as appellant suggests, we construe the Motion
as a request for an extension of time to appeal, pursuant to
Bankruptcy Rule 8002(c), the request was untimely. "The
wording of Rule 8002(c) makes it clear that once 30 days have
expired from the entry of the order without some notice of
appeal having been filed (either before or following the
expiration of the ten-day period), no appeal may ever be
taken, even upon a showing of excusable neglect." 10
Lawrence P. King, Collier on Bankruptcy 8002.09 (15th ed.
rev. 1997); see, e.g., In re Martinez, 97 B.R. 578, 580
(B.A.P. 9th Cir. 1989), aff'd, 919 F.2d 145 (9th Cir. 1990).
Neither the Motion nor the Notice of Appeal were filed within
30 days of the entry of the Judgment. Therefore, Rule
8002(c) did not authorize the extension of the appeal period
in this case, even if Colon had demonstrated "excusable
neglect."
2. Fed. R. Civ. P. Rule 60(b)
In the alternative, appellant seems to argue that the
Motion should have been construed as made pursuant to Fed. R.
Civ. P. 60(b), which has been used in some instances to
revive lost rights of appeal. See Scola v. Boat Frances, R.,
Inc., 618 F.2d 147, 152 (1st Cir. 1980). Rule 60(b), made
applicable to bankruptcy cases by Bankruptcy Rule 9024,
permits a motion for relief from a judgment or order to be
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filed "within a reasonable time" after judgment enters. We
assume for the purposes of this appeal that the Motion was
pursuant to Rule 60(b) and that it was filed "within a
reasonable time."
Appellant's reliance on Rule 60(b) is misplaced,
however, where lack of notice is the reason for the
untimelines of the appeal. Bankruptcy Rule 9022(a), like
Fed. R. Civ. P. 77(d), provides that, although the clerk is
to provide notice of entry of judgment to the parties,
"[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." Rule 9022(a).
"The courts have unanimously agreed, a mere lack of Rule
77(d) notice does not justify Rule 60(b) relief." 12 Moore's
Federal Practice, 60.48[6][c] (3d ed. 1997). "[P]arties to
an ongoing case have an independent obligation to monitor all
developments in the case and cannot rely on the clerk's
office to do their homework for them." Witty v. Dukakis, 3
F.3d 517, 520 (1st Cir. 1993). Therefore, even if we assume
(without deciding) that appellant did not receive notice of
entry of the Judgment within the appeal period, that fact
alone would not justify Rule 60(b) relief. Appellant has not
alleged that he diligently monitored the bankruptcy court
docket to determine if there had been a ruling on appellees'
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Motion Requesting Ruling on Sanctions, which was filed only
four months before the Judgment was entered. The bankruptcy
court did not abuse its broad discretion in denying the
Motion. See Witty, 3 F.3d at 521.
The district court's Opinion and Order dated June 4,
1996, is affirmed. See Loc. R. 27.1.
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