J. PAUL OETKEN, District Judge.
Pro se Appellants Alphonse Fletcher, Jr. and George E. Ladner bring this bankruptcy appeal under 28 U.S.C. § 158. Appellee William K. Harrington, United States Trustee, moves to dismiss the appeal for lack of subject matter jurisdiction. For the reasons that follow, that motion is granted.
The following facts are relevant to the Court's jurisdiction. These facts are taken from the record and are undisputed unless otherwise noted.
Appellants are the sole directors of a series of mutual funds (collectively, the "debtors") that filed for Chapter 11 bankruptcy relief on September 24, 2013. On January 23, 2014, the Bankruptcy Court for the Southern District of New York entered an Order for the appointment of a Chapter 11 trustee over Appellants' objections. Fifteen days later, at 2:00 a.m. EST, February 7, 2014, Appellants emailed a notice of bankruptcy appeal ("notice") to the Appellees and the Bankruptcy Court. Because Appellants were on the west coast, as they understood it, the email was sent at 11:00 p.m. PST, February 6, 2014, or fourteen days after the Order was entered. The body of the email stated:
(Trustee Brief, Ex. A.) The Bankruptcy Court's docket report reflects that the notice was "Filed 02/07/14." (Case No. 13-13098, Dkt. No. 172.)
The Trustee argues that Appellants missed the 14-day window for filing a notice of appeal, and, because the timeliness requirements are statutory and jurisdictional, the late filing strips the court of jurisdiction to hear this appeal. It is true
Rule 8002 contains two relevant provisions on timeliness. First, Rule 8002(a) creates a 14-day default filing period.
Appellants argue that the body of their email should be construed as a
Where timeliness determines whether jurisdiction exists over an appeal, this Circuit has recognized that the distinction between a motion to extend time and a substantive filing can be collapsed. Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (noting, in a habeas corpus case, that "a district court is empowered, and in some instances may be required" to treat a motion "nominally seeking an extension of time ... as a substantive motion for relief"). Therefore, the Court will also look to the notice itself to see if an extension was requested. If Appellants had filed a notice of bankruptcy appeal with a meritorious request for a Rule 8002(c)(2) extension stated on its face, the court would be splitting hairs to require separate filings for the notice and the motion, or, in the alternative, to require that the motion be filed qua motion with the notice attached as an exhibit. Although Apellants did not explicitly request an extension, their intent to file notice was clear and, applying the standard that is appropriate for pro se litigants, a request for an extension may be implied from these facts. Bankruptcy law's notice provision is designed to ensure that parties will be notified when an Order is contested; the extension provision is meant to protect appellants and mitigate the harshness of a bright-line rule. See Fed. R. Bankr.P. 8002 Advisory Committee Notes (observing that Rule 8002(c) was amended in 1997 "to protect parties ... from the harshness of the [then-]present rule"). The balance that courts must achieve between these competing goals is not well-served by a hypertechnical focus on the labels of filings.
Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir.2003) (quoting Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P'ship, 507 U.S. 380, 385, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). The emphasis falls on the third factor. Id. Appellants' notice and email state no facts or arguments that excuse a late filing. Although "pro se status is relevant in determining whether there has been excusable neglect," such status alone is insufficient for a finding of excusable neglect. Myers v. New York City Human Rights Comm'n, 04 Civ. 00543(JCF), 2006 WL 2053317, at *2 (S.D.N.Y.2006) (collecting pro se cases where the excusable neglect standard was not met). Accordingly, Rule 8002(c)(2) is inapplicable and this appeal fails for a lack of subject matter jurisdiction.
For the foregoing reasons, the Trustee's motion to dismiss the appeal is GRANTED. The Clerk of the Court shall close the motion at docket number 5 and terminate this case.
SO ORDERED.