Poddar v. United States Trustee (In Re Poddar) , 507 F. App'x 773 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 11, 2013
Elisabeth A. Shumaker
Clerk of Court
In re: ROHIT PODDAR,
Debtor.
No. 12-1059
------------------------------ (D.C. No. 1:11-CV-03009-JLK)
(D. Colo.)
ROHIT PODDAR,
Appellant,
v.
UNITED STATES TRUSTEE,
Appellee.
ORDER AND JUDGMENT*
Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Rohit Poddar, who at all times has proceeded pro se,1 appeals from the district
court’s order dismissing for lack of jurisdiction his appeal from a bankruptcy court
order. Because the district court correctly determined it lacked jurisdiction, we
affirm the court’s dismissal.
BACKGROUND
In February 2011, Mr. Poddar filed a voluntary Chapter 11 bankruptcy petition
in the United States Bankruptcy Court for the Northern District of Georgia. Upon
granting an unopposed motion of the United States Trustee, that court transferred the
petition to the United States Bankruptcy Court for the District of Colorado. After the
transfer, the Trustee moved to convert the case to a Chapter 7 case under 11 U.S.C.
§ 1112(b). The court, on October 28, 2011, granted the motion.
On November 16, Mr. Poddar filed a document the bankruptcy court construed
as a motion to reconsider. The next day, he filed both a notice of appeal and a
motion for an extension of time to file a notice of appeal. On January 10, 2012, the
bankruptcy court denied reconsideration and an extension of time to appeal.
Meanwhile, in the district court, the Trustee moved to dismiss Mr. Poddar’s
appeal as untimely because it was filed beyond the fourteen-day time period for filing
a notice of appeal. See 28 U.S.C. § 158(c)(2) (requiring appeal to “be taken . . . in
the time provided by Rule 8002 of the Bankruptcy Rules”); Fed. R. Bankr. P. 8002(a)
1
Accordingly, we liberally construe his pro se pleadings. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
-2-
(“The notice of appeal shall be filed with the clerk within 14 days of the date of the
entry of the judgment, order, or decree appealed from.”). Mr. Poddar admitted filing
his notice of appeal three days after the deadline. But he opposed the motion to
dismiss on the ground that the three-day delay was not exorbitant and, in the interests
of justice, his appeal should be heard on its merits. The district court granted the
Trustee’s motion, concluding the court lacked jurisdiction to hear the case because
Mr. Poddar filed his notice of appeal after the fourteen-day filing deadline. Also, the
court determined that equitable principles did not circumvent jurisdictional
limitations.
Mr. Poddar moved to reconsider, asserting that he did not receive written
notice of the bankruptcy court’s order and he could not appeal within the
fourteen-day period because he was in India. The court denied reconsideration,
finding that Mr. Poddar’s lack of written notice did not affect the statutory deadline
for filing his appeal. See Fed. R. Bankr. P. 9022(a) (stating lack of notice does not
affect time to appeal). This appeal followed.
JURISDICTIONAL ANALYSIS
We have jurisdiction to consider the district court’s order dismissing
Mr. Poddar’s appeal from the bankruptcy court’s order. See 28 U.S.C. § 158(d)(1).
Thus, we may consider whether the district court properly exercised its subject matter
jurisdiction under § 158(a). In re Caterbone, 640 F.3d 108, 111 (3rd Cir. 2011). Our
review is de novo. Id.-3-
As indicated above, § 158(c)(2) and Rule 8002(a) require a notice of appeal
from a bankruptcy court order to be filed within fourteen days of the entry of that
court’s order. If a timely motion for reconsideration is filed within fourteen days of
the order appealed from, the time for filing an appeal is tolled. See Fed. R. Bankr. P.
8002(b) (referring to Fed. R. Bankr. P. 9023 and 9024, which make Fed. R. Civ. P.
59 and 60 applicable to bankruptcy cases). “[T]he failure to file a timely notice of
appeal from a bankruptcy court’s order constitutes a jurisdictional defect.” Emann v.
Latture (In re Latture), 605 F.3d 830, 832 (10th Cir. 2010).
Mr. Poddar does not dispute that his notice of appeal and motion for
reconsideration were filed beyond fourteen days. The district court therefore
correctly decided that his appeal was untimely. Because that court lacked
jurisdiction, we too have no jurisdiction to review the merits of Mr. Poddar’s appeal.
Mr. Poddar, however, contends the three-day delay in filing an appeal should
be permitted under the equitable principle of excusable neglect, because conversion
to Chapter 7 prejudiced his interests, the impact of a three-day delay was negligible,
the delay was due to his being in India with his sick mother and his being too sick to
travel, and he acted in good faith. Like the district court, we lack authority to extend
the time for filing an appeal based on excusable neglect. Only the bankruptcy court
has that authority. See Fed. R. Bankr. P. 8002(c)(1).
-4-
CONCLUSION
Accordingly, we affirm the district court’s order dismissing Mr. Poddar’s
appeal for lack of jurisdiction. Mr. Poddar’s request that we stay the bankruptcy
court’s October 28, 2011, order is denied as moot.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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