Marcelo Britto Gomez V. , 670 F. App'x 549 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 4 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MARCELO BRITTO GOMEZ, No. 14-60027
Debtor, BAP No. 13-1282
______________________________
CARTER STEPHENS, MEMORANDUM*
Appellant,
v.
MARCELO BRITTO GOMEZ; UNITED
STATES TRUSTEE,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Taylor, Pappas, and Kurtz, Bankruptcy Judges, Presiding
Submitted October 25, 2016**
Before: LEAVY, SILVERMAN, and GRABER, Circuit Judges.
Carter Stephens appeals pro se from the Bankruptcy Appellate Panel’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“BAP”) judgment affirming the bankruptcy court’s order denying reconsideration
of its order dismissing for failure to prosecute Stephens’s adversary proceeding.
We have jurisdiction under 28 U.S.C. § 158(d). We review de novo decisions of
the BAP. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th
Cir. 2009). We vacate and remand.
A motions panel of the BAP limited the scope of Stephens’s appeal to the
bankruptcy court’s order denying Stephens’s motion for reconsideration. The
panel applied the fourteen-day time limit to file a notice of appeal found in Federal
Rule of Bankruptcy Procedure 8002(a), and observed that Stephens’s motion for
reconsideration was not filed within fourteen days and, therefore, did not toll the
time limit to file a notice of appeal as to the underlying order of dismissal, see Fed.
R. Bankr. P. 8002(b). The BAP erred in limiting the scope of Stephens’s appeal.
See Fed. R. Bankr. P. 7058. Because Federal Rule of Civil Procedure 58 applies in
adversary proceedings, Fed. R. Bankr. P. 7058, and because the bankruptcy court
did not enter a separate judgment in the case, Stephens had 150 days from the entry
of the order in the bankruptcy court’s docket. See Fed. R. Civ. P. 58(c). Stephens
timely filed his motion for reconsideration from the February 8, 2012 order
dismissing the adversary proceeding, Fed. R. Civ. P. 59(e), and timely appealed
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from both the dismissal order and from the order denying reconsideration. No
tolling was required.
Because the BAP did not reach the issue of whether the bankruptcy court
properly dismissed Stephens’s adversary proceeding for failure to prosecute, we
remand to the BAP to consider the issue in the first instance.
All pending motions are denied.
Each party shall bear its own costs in this appeal.
VACATED and REMANDED.
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