In Re: Cesar Montiel Perez

Filing 12

ORDER Granting 4 Motion to Dismiss Appeal. Signed by Judge Janis L. Sammartino on 4/27/2021. (Bankruptcy Court Case Number: 18-07545-MM7) (All non-registered users served via U.S. Mail Service) (tcf)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 In re CESAR MONTIEL PEREZ, Case No.: 20-CV-2152 JLS (AHG) Debtor. 12 ORDER GRANTING MOTION TO DISMISS APPEAL 13 14 15 16 17 MAURICE GRAYTON, (ECF No. 4) Appellant, v. UNITED STATES TRUSTEE Appellee. 18 19 20 Presently before the Court is Appellee United States Trustee Tiffany Carroll’s 21 Motion to Dismiss Appeal (“Mot.,” ECF No. 4). Appellant Maurice Grayton (“Appellant” 22 or “Mr. Grayton”), proceeding pro se, filed an Opposition to the Motion (“Opp’n,” ECF 23 No. 9), and Appellee filed a Reply in support of the Motion (“Reply,” ECF No. 10). The 24 Court decides this matter on the papers submitted and without oral argument pursuant to 25 Civil Local Rule 7.1(d)(1). See generally ECF No. 7. Having carefully reviewed the 26 Parties’ arguments and the relevant law, the Court GRANTS Appellee’s Motion to 27 Dismiss. 28 /// 1 20-CV-2152 JLS (AHG) 1 On January 3, 2020, the United States Trustee initiated an adversary proceeding 2 against Mr. Grayton in the United States Bankruptcy Court for the Southern District of 3 California. Mot. at 3; see generally United States Trustee v. Grayton, No. 3:20-ap-90002- 4 MM (Bankr. S.D. Cal.). The complaint alleges that Mr. Grayton “engaged in unfair, 5 deceptive, or fraudulent conduct and has violated various sub-sections of 11 U.S.C. § 110.” 6 Mot. at 4. “The complaint asserts that Mr. Grayton, who is not an attorney, has acted as a 7 bankruptcy petition preparer in connection with a case filed in the Bankruptcy Court for 8 the Southern District of California.” Id. Mr. Grayton filed an answer alleging that he had 9 acted under duress. Id. Mr. Grayton also invoked his Fifth and Fourteenth Amendment 10 rights and demanded a jury trial. Id. After his motion for summary judgment was denied, 11 Mr. Grayton filed a motion in limine asserting issues of jurisdiction and timeliness. Id. at 12 6–7. 13 On October 14, 2020, the bankruptcy court entered an order denying Mr. Grayton’s 14 motion in limine. See id. at 7; see also United States Trustee v. Grayton, No. 3:20-ap- 15 90002-MM (Bankr. S.D. Cal.), (“Order,” ECF No. 72).1 In denying Mr. Grayton’s motion, 16 the court noted that “[a]lthough the title of the Motion indicates it is a motion in limine 17 regarding the court’s jurisdiction, [Mr.] Grayton mostly argues the merits of the [United 18 States Trustee]’s claims.” Order at 1. The court found the motion in limine was “premature 19 and lack[ing] specificity.” Id. at 2. 20 On November 2, 2020, Mr. Grayton filed a notice of appeal based on the bankruptcy 21 court’s denial of his motion in limine. See generally “Notice of Appeal,” ECF No. 1 at 1. 22 This action is one of four appeals2 filed by Appellant in this District related to the 23 underlying bankruptcy action, which is still pending before the bankruptcy court. See 24 generally Docket of United States Trustee v. Grayton, No. 3:20-ap-90002-MM (Bankr. 25 26 27 28 A court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 1 2 See case nos. 3:20-cv-01616, 3:20-cv-02433, and 3:21-cv-00083. 2 20-CV-2152 JLS (AHG) 1 S.D. Cal.). On December 1, 2020, Appellee filed the present Motion to Dismiss Appeal 2 for lack of jurisdiction, alleging Appellant’s appeal was untimely under 28 U.S.C. 3 § 158(c)(2) and Fed. R. Bankr. P. 8002. Mot. at 1–2. 4 An appellate court considers the issue of its own jurisdiction de novo. In re 5 Gugliuzza, 852 F.3d 884, 889 (9th Cir. 2017) (citing In re Bunyan, 354 F.3d 1149, 1152 6 (9th Cir. 2004); In re City of Desert Hot Springs, 339 F.3d 782, 787 (9th Cir. 2003)). On 7 appeal, the appellant “has the burden of establishing that jurisdiction exists.” Melendres v. 8 Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016) (quoting Data Disc, Inc. v. Sys. Tech. 9 Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977)). The deadline to file an appeal is 10 “mandatory and jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264 (1978) 11 (internal quotation marks and citation omitted); see also Melendres, 815 F.3d at 649 (“[W]e 12 are not at liberty to overlook a defect with the notice of appeal no matter how compelling 13 an appellant’s argument may be.”). This rule also applies to federal bankruptcy appeals. 14 In re Mouradick, 13 F.3d 326, 327–28 (9th Cir. 1994) (“[T]he untimely filing of a notice 15 of appeal deprives the appellate court of jurisdiction to review the bankruptcy court’s 16 order.”). 17 A party to a bankruptcy proceeding has fourteen days to appeal a bankruptcy judge’s 18 order. See 28 U.S.C. § 158(c)(2) (an appeal shall be taken within the time provided by 19 Fed. R. Bankr. P. 8002); Fed. R. Bankr. P. 8002(a)(1) (notice of appeal must be filed within 20 fourteen days after entry of the order being appealed). Additionally, Rule 8002 provides 21 that a “bankruptcy court may extend the time to file a notice of appeal upon a party’s 22 motion that is filed: (A) within the time prescribed by this rule; or (2) within 21 days after 23 that time, if the party shows excusable neglect.” Fed. R. Bankr. P. 8002(d)(1). 24 Appellant’s notice of appeal is untimely. The bankruptcy court entered its Order on 25 Appellant’s motion in limine on October 14, 2020, and Appellant filed his notice of appeal 26 19 days later on November 2, 2020. To be timely, Appellant’s notice of appeal needed to 27 be filed on October 28, 2020 or earlier. Although Appellant does not address Appellee’s 28 arguments regarding the timeliness of his appeal, see generally Opp’n, Appellant’s pro se 3 20-CV-2152 JLS (AHG) 1 status, in and of itself, does not excuse the late filing of his notice of appeal. In re Sattler, 2 840 F. App’x 214, 215 (9th Cir. 2021) (“[The appellant]’s pro se status at certain stages of 3 the proceedings is not by itself an extraordinary circumstance, and [the appellant] offered 4 no evidence that anything about his pro se status prevented him from timely prosecuting 5 appeals.”). Appellant had until November 18, 2020 (i.e., 21 days after the deadline to 6 appeal), to ask the bankruptcy court to extend the time to file an appeal, but Mr. Grayton 7 did not take that action either. Therefore, this Court does not have appellate jurisdiction to 8 review the Order. In re Mouradick, 13 F.3d 326, 327 (9th Cir. 1994) (“[T]he untimely 9 filing of a notice of appeal deprives the appellate court of jurisdiction to review the 10 bankruptcy court’s order.” (citations omitted)). 11 Accordingly, the Court finds Appellant’s appeal of the bankruptcy court’s order 12 denying his motion in limine is time barred. Appellee’s motion to dismiss the appeal for 13 lack of jurisdiction is GRANTED. The Court DISMISSES the appeal for lack of 14 jurisdiction. The Clerk of Court SHALL CLOSE the file. 15 16 IT IS SO ORDERED. Dated: April 27, 2021 17 18 19 20 21 22 23 24 25 26 27 28 4 20-CV-2152 JLS (AHG)

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