District Court Dismisses Appeal As Untimely Under Fed. R. Bankr. P. 8002(a) Where Appellant Filed Notice Of Appeal Fifteen Calendar Days After Date Of Entry Of Order
Hayes v. Genesis Health Ventures, Inc. (In re Genesis Health Ventures, Inc.), Civ. A. No. 06-397 (JJF), Case No. 00-2692 (PJW), 2007 WL 211209 (D. Del. Jan. 26, 2007) (Judge Joseph J. Farnan, Jr.)
The appellant filed a notice of appeal from an order of the Bankruptcy Court imposing sanctions against the appellant. However, although the notice of appeal was dated eight days after the date of entry of the order, it was not filed until fifteen days after the date of entry of the order appealed from. Because the ten day deadline to file a notice of appeal under Federal Rule of Bankruptcy Procedure 8002(a) was jurisdictional, the District Court found that it lacked jurisdiction to adjudicate the appeal.
Appellant James J. Hayes filed a number of motions and pleadings in the bankruptcy case of Genesis Health Ventures, Inc. The debtors sought, and the court entered on May 15, 2006, an order imposing sanctions against Hayes in connection with the filings. On May 30, 2006, Hayes filed a notice of appeal of the bankruptcy court’s order. The debtors filed a motion to dismiss Hayes’ appeal, contending that his notice of appeal was untimely under Fed. R. Bankr. P. 8002.Under Rule 8002(a), a “Notice of Appeal shall be filed within the clerk within 10 days of the date of entry of the judgment, order or decree appealed from.” Rule 8002 is jurisdictional, and the court cannot waive it. The order appealed from was entered on May 15, 2006. Because, under the Federal Rules of Bankruptcy Procedure, intervening Saturdays and Sundays are included when calculating the ten-day time period for filing a notice of appeal, the notice of appeal in this matter was to be filed no later than May 25, 2006. However, Hayes’ notice of appeal was filed on May 30, 2006, although dated May 23, 2006.
Although Hayes acted pro so, the Court held that the Supreme Court’s holding in Houston v. Lack, which provides that the date indicated on filings by pro se prisoners is presumptively the date of filing, did not extend to this case. There was no indication in the record that Hayes was incarcerated. In addition, Hayes did not file a motion to extend the time to file the notice of appeal under Rule 8002(c). Accordingly, the court held that the appeal was untimely, and that the court lacked jurisdiction to adjudicate the appeal.
