Filed: May 27, 2004
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 27 2004 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk In re: DONALD E. ARMSTRONG, Debtor. No. 03-4170 (BAP No. UT-03-017) (BAP) DONALD E. ARMSTRONG, Appellant, v. KENNETH A. RUSHTON, Trustee; STEPPES APARTMENTS, LTD.; JOHN L. FEECE, Appellees. ORDER AND JUDGMENT * Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges. * This order and judgment is not binding precedent, except under the doctrines of law of
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 27 2004 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk In re: DONALD E. ARMSTRONG, Debtor. No. 03-4170 (BAP No. UT-03-017) (BAP) DONALD E. ARMSTRONG, Appellant, v. KENNETH A. RUSHTON, Trustee; STEPPES APARTMENTS, LTD.; JOHN L. FEECE, Appellees. ORDER AND JUDGMENT * Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges. * This order and judgment is not binding precedent, except under the doctrines of law of ..
More
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 27 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
In re:
DONALD E. ARMSTRONG,
Debtor. No. 03-4170
(BAP No. UT-03-017)
(BAP)
DONALD E. ARMSTRONG,
Appellant,
v.
KENNETH A. RUSHTON, Trustee;
STEPPES APARTMENTS, LTD.;
JOHN L. FEECE,
Appellees.
ORDER AND JUDGMENT *
Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Donald E. Armstrong appeals the dismissal by the Bankruptcy
Appellate Panel (BAP) of his underlying appeal for failure to file a timely
opening brief. He also takes issue with the BAP’s refusal to entertain his motion
for reconsideration. We affirm.
After having received one extension of time until May 22, 2003, in which
to file his opening brief to the BAP in this matter, Armstrong requested yet
another extension, asking that his brief not be due until July 3, 2003. The BAP
denied the second motion for extension and ordered Armstrong to file his brief
“within five (5) days of the date of this Order.” Aplt. App. at 1. The order is
dated May 28; relying on Bankruptcy Rule 9006(a), five days from the date of the
order, excluding weekends, was June 4, 2003. Armstrong filed his brief on
June 6, 2003, and the BAP dismissed the appeal, citing Bankruptcy Rule 8001(a).
Armstrong filed an untimely motion to reconsider on the same day the BAP issued
its mandate. That motion was denied.
Armstrong initially contends that it was reversible error for the BAP to
deny his second motion for extension of time to file his opening brief. Matters
-2-
such as this are left to the discretion of the court. Nielsen v. Price , 17 F.3d 1276,
1277 (10th Cir. 1994) (finding no abuse of discretion in dismissing bankruptcy
appeal because of untimely-filed brief); cf. Panis v. Mission Hills Bank, N.A. ,
60
F.3d 1486, 1494 (10th Cir. 1995) (finding no abuse of discretion in permitting
late filing under Federal Rules of Civil Procedure); see also Fed. R. Bankr. P.
9006(b)(1). Given the fact that Armstrong had already received an extension of
more than thirty days in which to file his brief, we perceive no abuse of discretion
in refusing to grant a further extension.
On appeal, Armstrong argues that the “mailbox rule” should have been
applied both to his initial brief and to his motion for reconsideration, making both
filings timely. We disagree. Armstrong misunderstands the mailbox rule which
does not apply here.
Bankruptcy Rule 9006(f) provides in pertinent part:
When there is a right or requirement to do some act or
undertake some proceedings within a prescribed period
after service of a notice or other paper and the notice or
paper other than process is served by mail or under Rule
5(b)(2)(C) or (D) F.R.Civ. P., three days shall be added
to the prescribed period.
Fed. R. Bankr. P. 9006(f) (emphasis added). Armstrong insists that this rule
allowed him three extra days in which to file his brief and his subsequent motion.
What he loses sight of, however, is that the order denying his second motion for
an extension did not provide that he had five days after service of the order in
-3-
which to file his brief. It said he had five days from the date the order was filed
within which to file his brief. The mailbox rule is inapplicable to this situation.
Arbuckle v. First Nat’l Bank of Oxford (In re Arbuckle) , 988 F.2d 29, 31-32 (5th
Cir. 1993) (holding three-day extension not applicable to filing notice of appeal
because time ran from entry of order, not from service).
The same analysis applies to Armstrong’s motion for rehearing.
As explained by the BAP, Bankruptcy Rule 8015 requires that a motion for
rehearing “be filed within 10 days after the entry of the judgment.” The judgment
dismissing the appeal was entered on June 18, 2003. Armstrong’s motion for
rehearing was therefore due on or before June 30, 2003. The event triggering the
time clock for filing the motion for rehearing was the entry of the judgment of
dismissal. There was no requirement that Armstrong file his motion for rehearing
at some date after the service of a notice or other paper. Armstrong was required
to file, if at all, within ten days after entry of the judgment. Again, because the
mailbox rule applies to situations where the applicable rule requires an act within
a period of time after a notice or other paper is first served, it does not apply in
this situation.
Contrary to Armstrong’s interpretation, the information provided litigants
on this circuit’s website regarding various filing deadlines is no different. Those
directions clearly instruct litigants in the very first line that “[i]f ordered by a date
-4-
certain, the 3 day mailing rule does not apply.” See “Answers to Frequently
Asked Questions” at http://www.ca10.uscourts.gov/rules.cfm?part=2. The dates
at issue here were both “dates certain.” Five days from the date of the order
denying the second motion for extension, not counting weekends, was June 4,
2003; ten days from the date of the entry of judgment dismissing the appeal,
counting weekends, was June 30, 2003. There was nothing uncertain about these
dates. Armstrong’s brief and motion for rehearing were both late.
In addition to the fact that Armstrong’s motion for reconsideration was
untimely, we note that the BAP had issued its mandate on July 1, 2003, thus
effectively losing appellate jurisdiction over this case. Without jurisdiction, the
BAP had no authority to extend the time for filing the motion. See Boston &
Maine Corp. v. Town of Hampton , 7 F.3d 281, 282 (1st Cir. 1993).
As for Armstrong’s other issues, he did not make an argument based on
“excusable neglect” to the BAP, either when he filed his untimely brief or in his
untimely motion to reconsider, see generally Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship , 507 U.S. 380 (1993), so we will not consider it for the first
time on appeal, see Walker v. Mather (In re Walker) ,
959 F.2d 894, 896 (10th Cir.
1992). Even if we were to make an exception here, we are not persuaded that
Armstrong’s actions in this matter constituted “neglect” in the legal sense.
-5-
The fact that this court has, on occasion, allowed late filings by Armstrong
and perhaps others has no relevance in this matter. The BAP is fully within its
authority to manage its own docket. See Span-Eng Assocs. v. Weidner , 771 F.2d
464, 470 (10th Cir. 1985).
The order denying Armstrong’s second request for extension explicitly
states that “[t]he Appellant’s brief and appendix must be filed within five (5) days
of the date of this Order, or this appeal will be dismissed without further order.”
There is thus no basis upon which Armstrong can legitimately argue that the
dismissal came as a surprise to him or that a show cause order should have issued
before the BAP dismissed the appeal.
Finally, Armstrong, albeit proceeding pro se, is required to comply
with rules of procedure. Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir.
1994).
As we have noted in several other decisions issued this day, the fact that
the BAP has recently found that the bankruptcy court lacked jurisdiction to enter
criminal contempt sanctions against Armstrong in a related matter has no bearing
on this appeal. Armstrong’s motion to file a supplemental appendix is
-6-
GRANTED. The judgment the bankruptcy appellate panel is AFFIRMED.
The mandate shall issue forthwith.
Entered for the Court
Bobby R. Baldock
Circuit Judge
-7-
