In Re: Buckskin Realty, Inc. ( 2021 )

19-3828-bk
In Re: Buckskin Realty, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 22nd day of March, two thousand twenty-one.
4
5 PRESENT: RAYMOND J. LOHIER, JR.,
6 STEVEN J. MENASHI,
7 Circuit Judges,
8 ERIC KOMITEE,
9 Judge. *
10 ------------------------------------------------------------------
11 IN RE: BUCKSKIN REALTY, INC.,
12
13 Debtor.
14 ------------------------------------------------------------------
15
16 BUCKSKIN REALTY, INC.,
17
18 Plaintiff-Appellant,
19
*Judge Eric Komitee, of the United States District Court for the Eastern District of New
York, sitting by designation.
1 v. No. 19-3828-bk
2
3 MARK D. GREENBERG, GREENBERG &
4 GREENBERG,
5
6 Defendants-Appellees.
7 ------------------------------------------------------------------
8
9 FOR PLAINTIFF-APPELLANT: FREDERICK CAINS, New York,
10 NY
11
12 FOR DEFENDANTS-APPELLEES: A. MICHAEL FURMAN (Shari
13 Sckolnick, on the brief), Furman
14 Kornfeld & Brennan LLP, New
15 York, NY
16
17 Appeal from judgments of the United States District Court for the Eastern
18 District of New York (Frederic Block, Judge).
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
20 AND DECREED that the judgments of the District Court are AFFIRMED.
21 Buckskin Realty, Inc. appeals from a September 30, 2019 order and
22 November 6, 2019 judgments of the District Court (Block, J.) affirming orders of
23 the United States Bankruptcy Court for the Eastern District of New York (Lord,
24 B.J.). The Bankruptcy Court orders at issue denied Buckskin’s second motion for
25 reconsideration and its motion to amend the complaint, which claimed that the
2
1 Defendants-Appellees, a lawyer and his law firm, committed legal malpractice
2 while representing Buckskin in a foreclosure action. Buckskin also challenges the
3 District Court’s conclusion that it did not have jurisdiction to review the
4 Bankruptcy Court’s order dismissing the complaint because Buckskin’s appeal
5 from that order was untimely. We assume the parties’ familiarity with the
6 underlying facts and prior record of proceedings, to which we refer only as
7 necessary to explain our decision to affirm.
8 Buckskin first contends that the proceeding in which the Bankruptcy Court
9 dismissed the complaint was not a core proceeding. Because it never consented
10 to the Bankruptcy Court’s final adjudicatory authority over a non-core
11 proceeding, Buckskin argues, the District Court was required to treat the
12 Bankruptcy Court’s dismissal order as proposed findings of fact and conclusions
13 of law subject to approval by the District Court. See Wellness Int’l Network, Ltd.
14 v. Sharif, 135 S. Ct. 1932, 1942, 1948 (2015). But Buckskin forfeited its objection to
15 the Bankruptcy Court’s authority. Not only did Buckskin file its complaint in the
16 Bankruptcy Court, but it also failed to object to the dismissal order’s express
17 characterization of this case as a core proceeding when it moved for leave to
3
1 amend and twice moved for reconsideration. See id. at 1949; Stern v. Marshall,
2 564 U.S. 462, 482 (2011) (noting that if a litigant “believed that the Bankruptcy
3 Court lacked the authority to decide his claim …, then he should have said so—
4 and said so promptly” because such an objection “may be forfeited”); Bogle-
5 Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006).
6 Buckskin next challenges the District Court’s conclusion that the appeal
7 from the Bankruptcy Court’s dismissal order is untimely because Buckskin did
8 not file a notice of appeal until more than a year after that order was issued.
9 Instead, Buckskin filed the notice of appeal within fourteen days of the
10 Bankruptcy Court’s denial of its second motion for reconsideration. Buckskin
11 contends that its appeal was timely because Rule 8002(b)(1) of the Federal Rules
12 of Bankruptcy Procedure allows a party to file a notice of appeal within fourteen
13 days of the order disposing of the last motion to reconsider an order or
14 judgment. This argument conflicts with our decision in Glinka v. Maytag Corp.,
15 90 F.3d 72, 74 (2d Cir. 1996), which involved a materially identical provision in
16 the Federal Rules of Appellate Procedure, and in which we held that successive
17 motions for reconsideration do not toll the time to appeal. We have applied this
4
1 rule in the bankruptcy context, albeit in a case applying the Federal Rules of
2 Appellate Procedure. See, e.g., In re Bethlehem Steel Corp., 144 F. App’x 167, 168
3 (2d Cir. 2005).
4 Buckskin also submits that the District Court erred because its ruling about
5 untimeliness of the appeal came without notice and was not raised by the
6 Defendants-Appellees. But Rule 8002’s deadlines, which are incorporated by
7 statute, are jurisdictional. See 28 U.S.C. § 158(c)(2); In re Siemon, 421 F.3d 167,
8 169 (2d Cir. 2005); see also In re Indu Craft, Inc., 749 F.3d 107, 114–15 (2d Cir.
9 2014). It is well-established that a court may raise jurisdictional issues sua
10 sponte. See Transatl. Marine Claims Gency, Inc. v. Ace Shipping Corp., Div. of
11 Ace Young Inc., 109 F.3d 105, 107 (2d Cir. 1997). 1 Indeed, the Supreme Court has
12 stated that “courts . . . have an independent obligation to determine whether
13 subject-matter jurisdiction exists, even in the absence of a challenge from any
14 party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
1We note that spontaneous rulings on jurisdictional issues are “to be avoided,” but
because an “opportunity to develop the record” or make legal arguments could not
have altered our conclusion here, the District Court’s failure to give notice does not
require remand. Digitel, Inc. v. MCI Worldcom, Inc., 239 F.3d 187, 190 n.2 (2d Cir.
2001).
5
1 Finally, there is no dispute that Buckskin timely appealed from the
2 Bankruptcy Court’s orders denying its second motion for reconsideration and its
3 motion for leave to amend the complaint. But we affirm the District Court’s
4 resolution of those appeals.
5 First, Buckskin abandoned any challenge to the District Court’s decision
6 relating to the denial of the second motion for reconsideration. See Norton’s v.
7 Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the
8 briefs are considered waived and normally will not be addressed on appeal.”).
9 Second, the Bankruptcy Court did not err in denying Buckskin’s motion to
10 amend the complaint. Under Federal Rule of Civil Procedure 15(a)(2), a court
11 ordinarily should “freely give” a plaintiff leave to amend the complaint “when
12 justice so requires.” But where “a party does not seek leave to file an amended
13 complaint until after judgment is entered, Rule 15’s liberality must be tempered
14 by considerations of finality.” Williams v. Citigroup, Inc., 659 F.3d 208, 213 (2d
15 Cir. 2011); see Janese v. Fay, 692 F.3d 221, 229 (2d Cir. 2012) (“[A]mendment of a
16 complaint becomes significantly more difficult when a plaintiff waits . . . until
17 after judgment has been entered.”). Moreover, “a party seeking to file an
6
1 amended complaint postjudgment must first have the judgment vacated or set
2 aside.” Williams, 659 F.3d at 213 (alterations omitted). “[T]o hold otherwise
3 would enable the liberal amendment policy of Rule 15(a) to be employed in a
4 way that is contrary to the philosophy favoring finality of judgments and the
5 expeditious termination of litigation.” Nat’l Petrochem. Co. of Iran v. M/T Stolt
6 Sheaf, 930 F.2d 240, 245 (2d Cir. 1991) (quoting 6C Charles Alan Wright & Arthur
7 R. Miller, Federal Practice & Procedure § 1489 (3d ed. 1990)). We need not rely
8 on the heightened standards applicable to postjudgment motions for leave to
9 amend, however, because Buckskin’s proposed amendment failed to address the
10 infirmities identified in the Bankruptcy Court’s orders and is therefore futile
11 under any standard. See Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2008) (“Leave to
12 amend may be denied for good reason, including futility.” (quotation marks
13 omitted)).
14 We have considered Buckskin’s remaining arguments and conclude that
15 they are without merit. For the foregoing reasons, the judgments of the District
16 Court are AFFIRMED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk of Court
7