In re Heartland Mem'l Hosp., LLC

• Decision Date: 21 June 2012
• Docket Number: CASE NO. 07-20188 JPK
• Parties: In re: HEARTLAND MEMORIAL HOSPITAL, LLC, Debtor.
• Court: U.S. Bankruptcy Court — Northern District of Indiana

IN RE: HEARTLAND MEMORIAL HOSPITAL, LLC, Debtor.

CASE NO. 07-20188 JPK

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

Date: June 21, 2012.

Chapter 11

MEMORANDUM OF DECISION AND ORDER CONCERNING

MOTION FOR EXTENSION OF TIME TO FILE

NOTICE OF APPEAL ("MOTION")

The Motion, which was filed by Dr. Jeffrey R. Yessenow ("Yessenow") on June 5, 2012, seeks the court's dispensation pursuant to Fed.R.Bankr.P. 8002(c)(2) to file a notice of appeal after the date upon which the notice was required to be filed by Fed.R.Bankr.P. 8002(a). The basis for the Motion is that a notice of appeal was not timely filed due to excusable neglect.

For the reasons hereinafter stated, the court determines that the Motion will be denied.

The order from which Yessenow proposes to take an appeal was entered as record #2286 on May 21, 2012. The foregoing document was entered as a separate "judgment" pursuant to the provisions of Fed.R.Civ.P. 58(a)¹ ; a separate memorandum of decision with respect to the issues addressed by the order was entered as record #2285 on May 21, 2012. Notice of entry of the order was properly provided pursuant to Fed.R.Bankr.P. 9022(a). The order was docketed on the record of this case at 2:41 p.m. (EDT) on May 21, 2012. The Affidavit of Kristi L. Browne, which accompanies Yessenow's Motion, states that the order was received by her office on May 21, 2012 after 11:00 p.m. Thus, Yessenow's counsel receivedelectronic notification of the entry of the order at issue on the same date upon which the order was entered.

The basis upon which Yessenow seeks relief under Fed.R.Bankr.P. 8002(c)(2) for failure to timely file a notice of appeal based upon "excusable neglect" is stated in paragraphs 2 and 3 of the Affidavit of Kristi L. Browne, as follows:

2. On May 21, 2012, the Court entered an order denying Dr. Yessenow's motion to disqualify and entered judgment on that order. The order and judgment were not electronically received by my office until after 11:00 p.m.

3. The docketing staff at my office therefore did not receive the order and judgment until May 22, 2012, and the deadline to appeal was docketed as fourteen days thereafter, June 5, 2012.

The Motion is governed by the provisions of Fed.R.Bankr.P. 8002(c)(2), which states:

(2) A request to extend the time for filing a notice of appeal must be made by written motion filed before the time for filing a notice of appeal has expired, except that such a motion filed not later than 21 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect. An extension of time for filing a notice of appeal may not exceed 21 days from the expiration of the time for filing a notice of appeal otherwise prescribed by this rule or 14 days from the date of entry of the order granting the motion, whichever is later.

The deadline for filing a notice of appeal provided for by Fed.R.Bankr.P. 8002(a) begins with the proper docketing of record of the judgment/order from which an appeal is proposed to be taken. As stated in Stelpflug v. Federal Land Bank of St. Paul, 790 F.2d 47, 48-49 (7th Cir. 1986):

Bankruptcy Rule 8002(a), modeled after Rule 4(a) of the Federal Rules of Appellate Procedure, see Bankr.R. 8002(a), Notes of Advisory Committee on Rules, provides that "notice of appeal shall be filed with the clerk of the bankruptcy court within 10 days from the entry of the judgment, order or decree appealed from." When entering an order on the docket, the clerk of the bankruptcy court is required to make a notation in the docket to show the date the entry was made, pursuant to Bankruptcy Rule 5003(a).

. . .

"Entry" has a well defined meaning under the rules; it occurs onlywhen the essentials of a judgment or order are set forth in a written document separate from the court's opinion or memorandum and when the substance of this separate document is reflected in an appropriate notation on the docket sheet assigned to the action....²

In this case, the order was docketed as required, and the entry of the order was thus made on May 21, 2012.

Yessenow's contentions concerning "excusable neglect" revolve primarily around criteria stated in Pioneer Investment Service Company v. Brunswick Association Limited Partnership, 113 S.Ct. 1489 (1993), which did not address a deadline for filing of an appeal, but which many courts nevertheless apply to the circumstances of the instant matter. However, the appropriate standard by which to determine the Motion is not simply by means of a "scorecard" which applies the four criteria stated in Pioneer. Rather, as stated in In re Gehl, 324 B.R. 756, 759 (Bankr. N.D. Iowa 2005):

Excusable neglect is not defined in the Bankruptcy Rules. Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In determining whether a party's neglect of a deadline is excusable, the Supreme Court has held that "the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Gibbons v. U.S., 317 F.3d 852, 854-55 (8th Cir. 2003) (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). An analysis of the relevant surrounding circumstances includes a consideration of the following factors: (1) the danger of prejudice to the debtor; (2) the length of delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. In re Van Houweling, 258 B.R. 173, 176 (8th Cir. BAP 2001) (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). "It is the movant's burden to demonstrate to the trial court that excusable neglect exists." In re Food Barn Stores, Inc., 214 B.R. 197, 200 (8th Cir. BAP 1997).

These four factors do not carry equal weight; the excuse given for the late filing must be given the greatest import. Gibbons, 317F.3d at 854; Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 460 (8th Cir.2000). "While prejudice, length of delay, and good faith might have more relevance in a closer case, the reason-for-delay factor will always be critical to the inquiry." Lowry, 211 F.3d at 463. To be excusable, the neglect "need not be caused by circumstances beyond the control of the movant." Id. Instead, the central focus "must be upon the nature of the neglect." Id.

. . .

(T)he burden of establishing excusable neglect is quite onerous. Inadvertence, ignorance of the rules or mistakes in construing the rules do not usually rise to the level of excusable neglect. In re Beiwel, No. 00-00112-W, 2001 WL 753778 (Bankr.N.D.Iowa June 12, 2001). Moreover, a party has an independent obligation to monitor the developments of a case to determine the deadline for appeal. Food Barn Stores, 214 B.R. at 200; In re Henry Bros. P'ship, 214 B.R. 192, 196 (8th Cir. BAP 1997). (emphasis supplied)

Thus, the primary focus is upon the excuse given for late filing; Symbionics, Inc. v. Ortlieb, 432 F. App. 216 (4th Cir. 2011).

The basis for Yessenow's assertion of "excusable neglect" is not at all clear to the court. A separate form of judgment was entered on May 21, 2012. The fact of entry of that judgment was electronically noticed to Yessenow's counsel on May 21, 2012, and was in fact received by Yessenow's counsel's office on May 21, 2012. The best that the court can glean from Attorney Browne's affidavit is that the electronic notification from the court of the entry of judgment on May 21, 2012 was not opened in counsel's office until May 22, 2012, and that it was thus assumed that the date of entry of the judgment was actually May 22, 2012 when the electronic notification was actually perused by a person in counsel's office. Fed.R.Bankr.P. 9022(a) states the following, even in a context in which a court fails to provide notice of entry in any manner to parties:

Lack of notice of the entry does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 8002.

In the instant matter, notice of entry of the subject order was provided by the court, and was received by Attorney Browne's office, on the date upon which the subject order was entered.

The implication of Attorney Browne's affidavit is that if the electronic notification of the entry of the order had been received by her office prior to the close of business on May 21, 2012, her staff would have recorded the deadline for filing a notice of appeal as being June 4, 2012. Given that lack of any notice would not extend the deadline, this argument is difficult to comprehend as a basis for "excusable neglect". Moreover, assuming that the staff opens emails when they arrive at work in the morning, why would that staff assume that an email appearing at that time would relate to an event which occurred that morning? It is incumbent upon attorney's offices representing parties who may wish to appeal an order to review the record as to the clearly designated date of entry of the order, as stated in In re Davenport, 342 B.R. 482, 499 (Bankr. S.D. Tex. 2006) as follows:

Bankruptcy Rule 9022(a) states that "[l]ack of notice of the entry does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 8002." See also United States v. Cont'l Airlines Corp. (In re Cont'l Airlines Corp.) 67 B.R. 5, 7 (S.D.Tex.1986) (discussing Rules 8002 and 9022). The timeliness requirements of Rules 8002(a) and 8002(c)(2) are jurisdictional and strictly construed. Salisbury, 337 B.R. at 591-92.FN18

FN18. (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982); Torres v. Oakland Scavenger Co., 487 U.S. 312, 315, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988); Bad Bubba Racing Prods., Inc. v. Huenefeld (In re Bad Bubba Racing Prods., Inc.), 609 F.2d 815

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