Narada et al v. Social Security Administration

Filing 8

ORDER that the appeal is dismissed for lack of jurisdiction. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 5/16/13. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brenda K. Narada; Ty Estes Narada,
Appellants,

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ORDER

v.

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No. CV12-8188 PCT DGC

Social Security Administration,
Appellee.

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Before the Court is the motion to dismiss filed by Appellants Brenda Narada and

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Ty Narada. Doc. 5. Appellee Social Security Administration filed a response. Doc. 7.

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The Parties have not requested oral argument. For the reasons stated below, the Court

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will dismiss the appeal for lack of jurisdiction.

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I.

Background.

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Appellants filed for chapter 7 bankruptcy. In re Narada, No. 2:10-bk-06136-

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RTBP, Doc. 1 (Bankr. D. Ariz. Mar. 10, 2012). Appellee filed an adversary complaint

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objecting to the discharge of a debt owed to it. United States v. Narada, No. 2:10-ap-

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01163-RTBP, Doc. 1 (Bankr. D. Ariz. Nov. 26, 2010).

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On April 18, 2012, Appellee filed a motion for summary judgment in the

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bankruptcy court (id., Doc. 57), which the court granted on August 21, 2012 (id.,

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Doc. 69). Appellants filed a notice of appeal on August 29, 2012. Id., Doc. 71. The

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Clerk of the Bankruptcy Appellate Panel (“BAP”) issued an order indicating that the

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appeal was filed prior to entry of a separate and final judgment. Id., Doc. 75. That order

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required Appellants to file, by September 28, 2012, “a written response either

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1) explaining how the order on appeal is final and immediately reviewable;

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2) demonstrating what steps appellant is taking to expeditiously obtain a final order; or

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3) moving for leave to appeal.” Id. Appellee filed a statement electing to have the appeal

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transferred to District Court (id., Doc. 78), and the Court received the appeal on

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September 18, 2012. Doc. 2. The BAP closed the case that same day. Doc. 7-2.

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Appellants filed a motion to obtain final order with the bankruptcy court on

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September 19, 2012. Narada, No. 2:10-ap-01163-RTBP, Doc. 80 (Bankr. D. Ariz.

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Nov. 26, 2012). Appellants then filed a motion to dismiss the adversary proceeding on

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November 9, 2012. Id., Doc. 86.

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The bankruptcy court entered a final judgment in favor of Appellee on

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November 26, 2012. Id., Doc. 90. On January 18, 2012, the bankruptcy court denied

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Appellants’ motion to dismiss and advised the Parties that because final judgment had

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been entered, “this matter is moot and [] nothing is pending.” Id., Doc. 91.

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II.

Discussion.

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“The provisions of Bankruptcy Rule 8002 are jurisdictional[.]” In re Mouradick,

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13 F.3d 326, 327 (9th Cir. 1994). The notice of appeal from a bankruptcy court decision

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must be filed within 14 days of the entry of judgment. Fed. R. Bankr. P. 8002(a). “[T]he

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untimely filing of a notice of appeal deprives the appellate court of jurisdiction to review

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the bankruptcy court’s order.” In re Mouradick, 13 F.3d at 327; see also In re Souza, 795

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F.2d 855, 857 (9th Cir. 1986).

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Appellants failed to file a notice of appeal, or any document for that matter, within

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14 days of the bankruptcy court’s November 26, 2012, final judgment.1 Accordingly, the

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Court lacks jurisdiction to review the bankruptcy court’s judgment.

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Appellants’ August 29, 2012, notice of appeal was based on an interlocutory order

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Even if the Court were to construe Appellants’ motion to dismiss (Doc. 5) – the
latest document Appellants filed with the Court – as Appellants’ opening brief, the appeal
would be untimely because Appellants filed it more than two weeks before the
bankruptcy court entered final judgment. See Narada, No. 2:10-ap-01163-RTBP, Doc.
90 (Bankr. D. Ariz. Nov. 26, 2012).

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(see Narada, No. 2:10-ap-01163-RTBP, Docs. 69 & 75 (Bankr. D. Ariz. Nov. 26, 2012)),

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and Appellants did not file a Rule 8003 motion for leave to appeal under 28 U.S.C.

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§ 158(a) with the BAP or this Court.2 The Court lacks jurisdiction to hear the appeal.

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IT IS ORDERED:

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The appeal is dismissed for lack of jurisdiction.

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2.

The Clerk is directed to terminate this action.

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Dated this 16th day of May, 2013.

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The memoranda filed by Appellants (Docs. 3 & 4) concern the merits of the
appeal and not the jurisdictional issue.

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