Kai Hansjurgens v. Donald H. Bailey , 521 F. App'x 920 ( 2013 )

Case: 12-14626 Date Filed: 06/11/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14626
Non-Argument Calendar
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D.C. Docket No. 4:11-cv-00202-WTM-GRS,
BKCY No. 07-bkc-41381-LWD
IN RE: DONALD H. BAILEY,
Debtor.
_________________________________
KAI HANSJURGENS,
Plaintiff-Appellant,
versus
DONALD H. BAILEY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(June 11, 2013)
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Before HULL, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Kai Hansjurgens, proceeding pro se, appeals the district court’s dismissal of
his bankruptcy appeal upon its finding that Hansjurgens untimely filed the notice
of appeal and failed to show excusable neglect, as required by Federal Rule of
Bankruptcy Procedure 8002(c)(2). Hansjurgens does not dispute that he filed his
notice of appeal 22 days after the bankruptcy court’s final judgment issued and 8
days after the time for filing a notice of appeal expired. Hansjurgens argues,
however, that his untimely filing stemmed from excusable neglect because his
former attorney erroneously advised him that he had 30 days from the bankruptcy
court’s entry of final judgment to appeal, instead of the 14 days that Rule 8002
requires. Hansjurgens raises a number of other arguments as to the substance of
his appeal, but unless he establishes that jurisdiction exists over his appeal, we
cannot and will not address them. Upon review of the record and consideration of
the parties’ briefs, we affirm.
We review the determination of excusable neglect, which here was made by
the bankruptcy court in denying Hansjurgens’s motion to extend the time to appeal,
for abuse of discretion. Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 997
(11th Cir. 1997). We review determinations of law—whether made by the
bankruptcy court or district court—de novo. Williams v. EMC Mortg. Corp. (In re
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Williams), 216 F.3d 1295, 1296 (11th Cir. 2000). We review the district court’s
decision to dismiss Hansjurgens’s appeal de novo. Id.Timely filing a notice of appeal is mandatory and jurisdictional, and an
appellate court lacks jurisdiction to hear an appeal if the notice is not timely filed.
Id. at 1298. Federal Rule of Bankruptcy Procedure 8002(a) provides that an
appellant must file a notice of appeal “within 14 days of the date of the entry of the
judgment, order, or decree appealed from.” Fed. R. Bankr. P. 8002(a). Under
certain circumstances, however, the bankruptcy court may extend the time for
filing a notice of appeal “upon a showing of excusable neglect.” Fed. R. Bankr. P.
8002(c)(1)-(2).
Excusable neglect “is at bottom an equitable” concept that considers all
relevant circumstances surrounding the omission. Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 1498 (1993).
Courts employ a four-factor test to determine the existence of excusable neglect:
(1) the risk of prejudice to the debtor; (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 moving party; and (4) whether the movant
acted in good faith. Id. (interpreting “excusable neglect” in context of Fed. R.
Bankr. P. 9006(b)(1)); see also Riney, 130 F.3d at 997-98. “[A]ttorney error based
on a misunderstanding of the law [is] an insufficient basis for excusing a failure to
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comply with a deadline.” Riney, 130 F.3d at 998. Pleadings filed by a pro se
litigant are construed liberally, but pro se litigants must nonetheless conform to
procedural rules, including deadlines. Albra v. Advan, Inc., 490 F.3d 826, 829
(11th Cir. 2007); Vanderberg v. Donaldson, 259 F.3d 1321, 1326 (11th Cir. 2001)
(“Liberal construction does not mean liberal deadlines.” (quotation omitted)).
Hansjurgens has not shown that the bankruptcy court abused its discretion in
finding that no excusable neglect existed; consequently, he has not shown that the
district court erred in dismissing his appeal. The primary explanation that he
provides for filing his notice of appeal late is that his former counsel erroneously
told him that he had 30 days from the entry of the bankruptcy court’s judgment to
file his appeal. However, under Riney, an attorney’s misunderstanding of the law
is not a sufficient basis for finding excusable neglect in failing to comply with a
deadline. Riney, 130 F.3d at 998. Hansjurgens maintains that, even if his former
counsel was not excusably negligent in misstating the appeal deadline,
Hansjurgens was excusably negligent to the extent that he relied on her erroneous
advice. However, he offers no authority to support his contention that such
reliance constituted excusable neglect, and our precedent that pro se litigants must
conform to procedural rules, including deadlines, is fatal to that argument. See
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Albra, 490 F.3d at 829; Vanderberg, 259 F.3d at 1326. Accordingly, we affirm the
district court’s dismissal of Hansjurgens’s appeal for lack of jurisdiction. 1
AFFIRMED.
1
Having found that the district court lacked jurisdiction to hear Hansjurgens’s appeal, we
need not consider the merits of his substantive claims. We do note that there is no support in the
record for Hansjurgens’s bald allegations of partiality on the part of the bankruptcy judge.
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