Pierce et al v. Redding

Filing 24

ORDERERD as follows: (1) appellant Atheal Pierce's 19 Emergency Motion for Relief from Opinion and Judgment is treated as a motion to alter or amend or for rehearing; (2) appellant Pierce's 19 motion to alter or amend or for rehearing i s granted; (3) the 18 judgment and 17 opinion dated 12/28/05 are vacated, and the appeal in this case is reinstated. It is further ordered that appellee Curtis Reding's 5 motion to dismiss is denied to the extent appellee Reding contends that appellant Pierce's appeal was untimely filed. Signed by Judge Myron H. Thompson on 2/15/06. (sl, )

Pierce et al v. Redding

Doc. 24

Case 2:05-cv-01014-MHT

Document 24

Filed 02/15/2006

Page 1 of 3

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION IN RE: ATHEAL PIERCE Debtor. ATHEAL PIERCE, Appellant, v. CURTIS REDING, Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER In an order dated December 28, 2005, this court dismissed appellant Atheal Pierce's appeal of the

CIVIL ACTION NO. 2:05cv1014-MHT (WO)

bankruptcy court's dismissal of his Chapter 13 bankruptcy case. The court concluded that Pierce's notice of appeal

had been untimely filed because it had been date-stamped for September 28, 2005, by the clerk of the bankruptcy court. The deadline for filing the notice was September

26, 2005.

Dockets.Justia.com

Case 2:05-cv-01014-MHT

Document 24

Filed 02/15/2006

Page 2 of 3

On January 6, 2006, Pierce, who is proceeding pro se, filed a motion styled "Emergency Motion for Relief from Opinion and Judgment." Pierce contends that he filed the

notice by placing it in the court's drop box on September 26, 2005. another In support of this contention, Pierce attached of the notice which of he appeal, had date-stamped for his

copy 26,

September records. regarding

2005,

retained

After

consulting for

with

the

clerk's drop

office and

procedures

the

court's

box

confirming that Pierce's date-stamp notice is authentic, the court concludes that Pierce did in fact file his notice of appeal on September 26, 2005. Accordingly, his

notice of appeal was timely filed, and this court has jurisdiction over his appeal. The court will construe Pierce's pro se motion as a motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) or for rehearing under Federal Rule of Bankruptcy Procedure 8015. Because this court's

judgment was based on a mistake of fact and because

2

Case 2:05-cv-01014-MHT

Document 24

Filed 02/15/2006

Page 3 of 3

Pierce filed this motion within 10 days of the entry of judgment, see Fed. R. Civ. P. 59(b); Fed. R. Bankr. P. 8015, Pierce's motion is due to be granted. Accordingly, it is ORDERED as follows: (1) Appellant Atheal Pierce's "Emergency Motion for Relief from Opinion and Judgment" (Doc. No. 19) is treated as a motion to alter or amend or for rehearing (Doc. No. 19). (2) Appellant Pierce's motion to alter or amend or for rehearing (Doc. No. 19) is granted. (3) The judgment and opinion dated December 28, 2005 (Doc. Nos. 17 & 18) are vacated, and the appeal in this case is reinstated. It is further ORDERED that appellee Curtis Reding's motion to dismiss (Doc. No. 5) is denied to the extent appellee Reding contends that appellant Pierce's appeal was untimely filed. DONE, this the 15th day of February, 2006. _____________________________ /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE