William B. Blount v. Tom McGregor , 210 F. App'x 876 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 13, 2006
No. 06-13945
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket Nos. 04-00571-CV-MEF & 02-03083-WRS
IN RE: ALABAMA PROTEIN RECYLCING, L.L.C.,
Debtor.
___________________________________________________________________
WILLIAM B. BLOUNT,
B.P. HOLDINGS, LLC,
Plaintiffs-Appellants,
versus
TOM MCGREGOR, Trustee,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(December 13, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
This appeal arises from an adversary proceeding brought by the Chapter 7
Trustee (“Trustee”) against Appellants, William B. Blount and BP Holdings LLC, for
fraudulent transfer under 11 U.S.C. § 548, fraudulent transfer under § 8-9A-1 of the
Alabama Code (1975), unjust enrichment, and conversion. The bankruptcy court
entered judgment in favor of the Trustee and the district court affirmed. In this
appeal, Appellants challenge the district court’s denial of their Emergency Motion for
Enlargement of Time, which was filed after the district court denied their motion for
rehearing as untimely.1 Appellants concede that their motion for rehearing was
untimely, but argue that they established excusable neglect, sufficient to excuse the
untimely filing. We review the district court’s “excusable neglect” determination for
abuse of discretion. Cf. Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 997
(11th Cir. 1997) (reviewing district court’s “excusable neglect” determination for
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Because we discern no abuse of discretion in the district court’s denial of the Emergency
Motion, we lack jurisdiction to review the underlying order affirming the bankruptcy court’s
judgment in favor for the Trustee. This is so because although Rule 8015 provides for a tolling of
the 10-day period in which to appeal to this Court, such tolling is contingent on a timely motion for
rehearing under Rule 8015. See Fed. R. Bankr. P. 8015 (“If a timely motion for rehearing is filed,
the time for appeal to the court of appeals for all parties shall run from the entry of the order denying
rehearing or the entry of a subsequent judgment.”). Accordingly, we do not reach Appellant’s other
issues concerning the underlying bankruptcy proceeding.
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abuse of discretion, in the context of motion for extension of time in which to appeal).
After careful review, we affirm.
The Trustee’s claims were based on the sale of five trucks, the proceeds of
which the Trustee alleged were improperly diverted to BP Holdings. The bankruptcy
court entered judgment in favor of the Trustee and on appeal, the district court
affirmed. The district court entered its order on January 24, 2006. On February 7,
2006, Appellants filed a Motion for Rehearing, or in the Alternative, to Alter, Amend
or Vacate Judgment. On June 20, 2006, the district court denied the Motion as
untimely because it was filed outside of the 10-day period enumerated in Rule 8015
of the Federal Rules of Bankruptcy Procedure. The district court also found the
Motion was without merit.
Thereafter, on June 29, 2006, Appellants filed an “Emergency Motion for
Enlargement of Time,” which, in essence, sought leave to file an untimely motion for
rehearing, under Rule 8015. Appellants argued that counsel’s misreading of the
applicable procedural rules established excusable neglect for the untimely filing. The
effect of granting the Emergency Motion would be to render timely Appellants’
previously filed (and previously denied) motion for rehearing, which we observe the
district court had denied based on both untimeliness and the underlying merits. The
district court’s denial of the Emergency Motion forms the basis of this appeal. On
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appeal, Appellants argue the district court abused its discretion by denying an
enlargement of time in which to file a motion for rehearing, under Rule 8015.
The motion for rehearing in the district court was filed pursuant to Bankruptcy
Rule 8015, which provides:
MOTION FOR REHEARING. Unless the district court or the
bankruptcy appellate panel by local rule or by court order otherwise
provides, a motion for rehearing may be filed within 10 days after entry
of the judgment of the district court or the bankruptcy appellate panel.
If a timely motion for rehearing is filed, the time for appeal to the court
of appeals for all parties shall run from the entry of the order denying
rehearing or the entry of a subsequent judgment.
Fed. R. Bank. P. 8015. On January 24, 2006, the district court entered its order
affirming the bankruptcy court’s judgment in favor of the Trustee. Under the plain
language of Rule 8015, Appellants’ time for filing a motion for rehearing expired on
February 3, 2006 so that their motion, filed on February 7th, was untimely.
On this record, we can find no abuse of the district court’s discretion in its
denial of the subsequently filed Emergency Motion, in which Appellants asked for
leave to file an untimely Rule 8015 motion (or for the district court to deem timely
the already-denied motion for rehearing filed on February 7th). We are unpersuaded
by Appellants’ invitation to find an abuse of discretion in the district court’s failure
to find “excusable neglect,” under Rule 9006(b) of the Federal Rules of Bankruptcy
Procedure, based on counsel’s misreading of the Bankruptcy Rules and the Federal
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Rules of Civil Procedure, sufficient to excuse the untimeliness of the motion for
rehearing.
AFFIRMED.
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