In Re Everton Aloysius Sterling (Sterling v. Carlebach) , 690 F. App'x 747 ( 2017 )

16-1120
In re Everton Aloysius Sterling (Sterling v. Carlebach)
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
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 19th day of May, two thousand seventeen.
PRESENT: REENA RAGGI,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
IN RE EVERTON ALOYSIUS STERLING,
Debtor.
EVERTON ALOYSIUS STERLING,
Debtor-Appellant,
v. No. 16-1120-bk
DAVID CARLEBACH,
Appellee.
FOR APPELLANT: Everton Aloysius Sterling, pro se, Bronx, New
York.
FOR APPELLEE: No appearance.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Katherine Polk Failla, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that that the order entered on March 30, 2016, is AFFIRMED.
Everton Aloysius Sterling, pro se, appeals from the dismissal of his bankruptcy
appeal for lack of subject matter jurisdiction. On plenary review of a decision of a district
court functioning as an intermediate appellate court in a bankruptcy case, we assess legal
conclusions, including a determination of subject matter jurisdiction, de novo, while we
consider factual findings only for clear error. See In re Lehman Bros. Holdings Inc., 761
F.3d 303, 308 (2d Cir. 2014); Bechtel v. Competitive Techs., Inc., 448 F.3d 469, 471 (2d
Cir. 2006). In so doing, we assume the parties’ familiarity with the facts and procedural
history of the case, which we reference only as necessary to explain our decision to affirm.
An appeal to the district court from an order of the bankruptcy court must be made
within 14 days. See Fed. R. Bankr. P. 8002(a)(1); see also 28 U.S.C. § 158(c)(2)
(providing that bankruptcy appeal must be filed within time prescribed by Fed. R. Bankr.
P. 8002). The time limitations in Fed. R. Bankr. P. 8002(a) are jurisdictional, regardless
of a party’s pro se status. See In re Siemon, 421 F.3d 167, 169 (2d Cir. 2005). Thus, “in
the absence of a timely notice of appeal in the district court, [a] district court is without
jurisdiction to consider the appeal, regardless of whether the appellant can demonstrate
‘excusable neglect.’” Id.
We conclude that the district court properly dismissed Sterling’s bankruptcy appeal
for lack of subject matter jurisdiction because his notice of appeal was filed on January 13,
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2016—more than 14 days after the entry of the bankruptcy court’s December 22, 2015
order. Sterling’s argument that he was away when the bankruptcy court entered its
decision and, therefore, actually had fewer than 14 days to file his appeal is foreclosed by
In re Siemon, 421 F.3d at 169. Moreover, Sterling does not meet any of the exceptions to
the 14-day deadline enumerated in Fed. R. Bankr. P. 8002.1
We have considered Sterling’s remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the March 30, 2016 order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
1
Insofar as Sterling did, in fact, file a Fed. R. Bankr. P. 7052 motion, that motion did not
toll the time limit for appeal because it was itself untimely, having been filed 16 days after
the entry of the bankruptcy court’s order. See Fed. R. Bankr. P. 7052 (mandating 14-day
deadline for filing motion under rule).
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