In re Global Industrial Technologies, Inc.

• Decision Date: 21 September 2007
• Docket Number: Bankruptcy No. 02-21626-JKF.
• Citation: 375 B.R. 155
• Parties: In re GLOBAL INDUSTRIAL TECHNOLOGIES, INC., et al., Debtors. Global Industrial Technologies, Inc. and Harbison-Walker Refractories Company, Movants, v. Ash Trucking Company, Inc., Respondent. Ash Trucking Company, Inc., Movant, v. Global Industrial Technologies, Inc. and Harbison-Walker Refractories Company, Respondents.
• Court: U.S. Bankruptcy Court — Western District of Pennsylvania

375 B.R. 155

In re GLOBAL INDUSTRIAL TECHNOLOGIES, INC., et al., Debtors.

Global Industrial Technologies, Inc. and Harbison-Walker Refractories Company, Movants, v. Ash Trucking Company, Inc., Respondent.

Ash Trucking Company, Inc., Movant, v. Global Industrial Technologies, Inc. and Harbison-Walker Refractories Company, Respondents.

Bankruptcy No. 02-21626-JKF.

United States Bankruptcy Court, W.D. Pennsylvania.

September 21, 2007.

Reed Smith Shaw & McClay, Amy M. Tonti, Andrew J. Muha, Brian T. Himmel, David Ziegler, Gregory L. Taddonio, Paul M. Singer, Robert P. Simons, Reed Smith

LLP, Pittsburgh, PA, Nicholas R. Pagliari, Quinn Buseck Leemhuis Toohey & Kroto Inc., Erie, PA, for Debtors.

MEMORANDUM OPINION¹

JUDITH K. FITZGERALD, Bankruptcy Judge.

On November 2, 2005, this court issued a Memorandum Opinion and Order disallowing the claim of Ash Trucking. Counsel for Ash Trucking at the time the objection to claim was filed, Richard A. Getty and C. Thomas Ezzell, were both of the firm of Getty & Mayo, LLP. On November 18, 2005, four days after the time to appeal expired,² Ash Trucking filed a motion to set aside the Memorandum Opinion and Order, Doc. No. 5077, asserting that they had not been timely received and that the attorney most directly involved on its behalf, C. Thomas Ezzell, was no longer with the law firm of Getty & Mayo, LLP. This court denied that motion on November 29, 2005, Doc. No. 5104, because the assertion in the motion that counsel for Ash Trucking did not timely receive the Memorandum Opinion and Order was unsupported by a recitation of facts or a declaration or affidavit. Further, there had been no notice to this court that Mr. Ezzell had left the firm and no notice of change of counsel or address had been filed. In fact, Mr. Getty remains counsel for Ash Trucking and his address has not changed throughout these proceedings. In addition, every notice involving his client has been directed to his attention, by name, even when also directed to Mr. Ezzell. The docket and the Memorandum Opinion and Order indicate that both Mr. Ezzell and Mr. Getty were served by mail at the address they provided to the court.³

The November 29, 2005, order was appealed and by Opinion and Order of Court dated May 4, 2006, Civ. Action No. 06-79, Doc. No. 12, Bankruptcy Case No. 02-21626, Doc. No. 5922, the District Court vacated our order and remanded for "a comprehensive and thorough analysis of the issue of excusable neglect as set forth in" Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), which examined late proofs of claim in the context of Bankruptcy Rule 9006. We will discuss the factors considered in Pioneer Investment throughout this Memorandum Opinion. We note that Pioneer Investment does not provide an "out" for all negligent conduct. The negligent conduct must be excusable.

Ash Trucking's Motion to Set Aside requests that the court, in effect, vacate and reenter its November 2, 2005, order so that Ash Trucking can timely file a notice of appeal. We therefore will address the Motion to Set Aside as a request to enlarge the time to appeal under Rule 8002 which is governed by Bankruptcy Rule 9006(b).⁴ This approach will encompass the excusable neglect analysis under Pioneer Investment that the District Court directed we undertake. Rule 9006 provides, in pertinent part, as follows:

(b) Enlargement.

(1) In General. Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.

. . .

(3) Enlargement Limited. The court may enlarge the time for taking action under Rules ... 8002 ..., only to the extent and under the conditions stated in those rules.

Bankruptcy Rule 8002(a) requires that a notice of appeal from an order of the bankruptcy court be filed within 10 days of the entry of the order.⁵ Under Rule 8002(c)(2) a written motion requesting extension of the time to file a notice of appeal must be made within ten days of the order being appealed "except that such a motion filed not later than 20 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect." Thus, the excusable neglect analysis must be undertaken pursuant to Rules 9006(b)(3) and 8002(c)(2).

Case law in this circuit' consistently has held that the appeal deadline in bankruptcy cases is jurisdictional. See In re Allegheny Health Educ. & Research Foundation, 2006 WL 1440228 (3d Cir. May 25, 2006); In re Smith, 165 Fed.Appx. 961 (3d Cir.2006); In re Flanagan, 999 F.2d 753 (3d Cir.1993); In re Colon, 941 F.2d 242 (3d Cir.1991); In re Universal Minerals, Inc., 755 F.2d 309 (3d Cir.1985). This court's Memorandum Opinion and Order were entered on November 2, 2005, docketed on November 4, 2005, and mailed that same day to Mr. Getty and Mr. Ezzell in accordance with internal procedures as discussed below. See Doc. No. 5034. The motion to set aside our Memorandum Opinion and Order was filed at Doc. No. 5077 on November 18, 2005. Accordingly, the Motion `to Set Aside, treated as a motion to extend the time to appeal, is timely. If excusable neglect is shown, an extension of time to appeal could be granted. Having received and read the pleadings and briefs and having heard argument of counsel, we find that, although Mr. Getty arguably established neglect, it was not excusable neglect. Further, the reasons he offers to support his failure to timely appeal are insufficient under Pioneer Investment.

We first analyze the circumstances surrounding the failure to timely appeal, as suggested by Pioneer Investment. The Motion to Set Aside refers to the fact that Mr. Ezzell did not get notice. However, Mr. Ezzell apparently is no longer with Mr. Getty's firm, did not file the motion to set aside the Memorandum Opinion and Order and, to date, has not filed any documents, affidavits, or pleadings nor has he appeared in connection with the motion to set aside the Memorandum Opinion and Order. Moreover, the address on file for Mr. Ezzell (and Mr. Getty) in this proceeding and in the District Court, see infra, are the same as that stated in all Ash Trucking filings. Further, Mr. Getty has always been identified as counsel for Ash Trucking and was, and continues to be, served with all notices pertaining to his client. Mr. Getty referred to a change of address but, in all pleadings that he filed in this bankruptcy case (and in the District Court appeal) he lists the same address as that to which notices have been mailed with respect to Ash Trucking. Mr. Ezzell has never filed a change of address regarding this matter and Mr. Getty continues to file pleadings on behalf of Ash Trucking using the same address and clearly he, not Mr. Ezzell, is the attorney representing Ash Trucking.⁶

Assuming, without deciding, that, for purposes of this matter, Mr. Getty has standing to raise the alleged and unsubstantiated lack of notice to Mr. Ezzell,⁷ we address the remaining issues.

There is a notation at the end of the November 2, 2005, Memorandum Opinion and of the `accompanying Order that states that "[t]he Case Administrator will electronically send copies of the Memorandum Opinion and Order to the parties listed on the current service list in addition, to those listed below." Those "listed below," i.e., those who received paper mailing directly from the court, as opposed to notice from the Case Administrator, include Mr. Getty and Mr. Ezzell at the same address which is the only address that has been on file in this court since the inception of the litigation with respect to Ash Trucking. This procedure of mailing is followed by the Court with respect to all memorandum opinions.⁸

With respect to Mr. Getty's assertion that the failure to timely appeal should be excused because Mr. Ezzell left the firm, we reiterate, and it is apparent from pleadings filed here and in the appeal, that Mr. Getty himself continues to represent Ash Trucking with respect to its claim(s) against this Debtor. He files the pleadings and he has appeared, telephonically or otherwise, at hearings on this matter. We also note that the law firm with which Mr. Getty is associated changed its name⁹ more than once during the course of the litigation over Ash Trucking's claim but the address did not change and in every name change Mr. Getty's name is listed first.¹⁰ There were no facts stated in the motion which would justify granting the Motion to Set Aside under Pioneer Investment or any other standard of which this court is aware.

At the May 31, 2006, hearing we granted Mr. Getty the opportunity to supplement the record `concerning excusable neglect and gave counsel for Debtor an opportunity to respond. Argument was held on September 21, 2006. Mr. Getty states in his supplemental pleading that his billing records "demonstrate that counsel first saw the Order [on the Memorandum Opinion] on November 16, 2005," two days after the appeal period expired. Supplemental Brief, Doc. No. 5254, at 4 (emphasis added). However, when Mr. Getty first laid eyes on the Memorandum Opinion and Order does not mean that the Memorandum Opinion and Order arrived at his address that day. The court also gave Mr. Getty an opportunity to supplement the record with respect to his request but, although he filed additional pleadings, he alleged no new facts and proffered no evidence to establish excusable neglect. See Doc. No. 6264.¹¹

Mr. Getty...