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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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In re CESAR MONTIEL PEREZ,

Case No.: 20-CV-2152 JLS (AHG)
Debtor.

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ORDER GRANTING MOTION TO
DISMISS APPEAL

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MAURICE GRAYTON,
(ECF No. 4)

Appellant,
v.
UNITED STATES TRUSTEE
Appellee.

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Presently before the Court is Appellee United States Trustee Tiffany Carroll’s

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Motion to Dismiss Appeal (“Mot.,” ECF No. 4). Appellant Maurice Grayton (“Appellant”

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or “Mr. Grayton”), proceeding pro se, filed an Opposition to the Motion (“Opp’n,” ECF

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No. 9), and Appellee filed a Reply in support of the Motion (“Reply,” ECF No. 10). The

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Court decides this matter on the papers submitted and without oral argument pursuant to

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Civil Local Rule 7.1(d)(1). See generally ECF No. 7. Having carefully reviewed the

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Parties’ arguments and the relevant law, the Court GRANTS Appellee’s Motion to

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Dismiss.

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///
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20-CV-2152 JLS (AHG)

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On January 3, 2020, the United States Trustee initiated an adversary proceeding

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against Mr. Grayton in the United States Bankruptcy Court for the Southern District of

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California. Mot. at 3; see generally United States Trustee v. Grayton, No. 3:20-ap-90002-

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MM (Bankr. S.D. Cal.). The complaint alleges that Mr. Grayton “engaged in unfair,

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deceptive, or fraudulent conduct and has violated various sub-sections of 11 U.S.C. § 110.”

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Mot. at 4. “The complaint asserts that Mr. Grayton, who is not an attorney, has acted as a

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bankruptcy petition preparer in connection with a case filed in the Bankruptcy Court for

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the Southern District of California.” Id. Mr. Grayton filed an answer alleging that he had

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acted under duress. Id. Mr. Grayton also invoked his Fifth and Fourteenth Amendment

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rights and demanded a jury trial. Id. After his motion for summary judgment was denied,

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Mr. Grayton filed a motion in limine asserting issues of jurisdiction and timeliness. Id. at

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6–7.

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On October 14, 2020, the bankruptcy court entered an order denying Mr. Grayton’s

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motion in limine. See id. at 7; see also United States Trustee v. Grayton, No. 3:20-ap-

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90002-MM (Bankr. S.D. Cal.), (“Order,” ECF No. 72).1 In denying Mr. Grayton’s motion,

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the court noted that “[a]lthough the title of the Motion indicates it is a motion in limine

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regarding the court’s jurisdiction, [Mr.] Grayton mostly argues the merits of the [United

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States Trustee]’s claims.” Order at 1. The court found the motion in limine was “premature

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and lack[ing] specificity.” Id. at 2.

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On November 2, 2020, Mr. Grayton filed a notice of appeal based on the bankruptcy

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court’s denial of his motion in limine. See generally “Notice of Appeal,” ECF No. 1 at 1.

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This action is one of four appeals2 filed by Appellant in this District related to the

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underlying bankruptcy action, which is still pending before the bankruptcy court. See

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generally Docket of United States Trustee v. Grayton, No. 3:20-ap-90002-MM (Bankr.

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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)).
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See case nos. 3:20-cv-01616, 3:20-cv-02433, and 3:21-cv-00083.
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20-CV-2152 JLS (AHG)

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S.D. Cal.). On December 1, 2020, Appellee filed the present Motion to Dismiss Appeal

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for lack of jurisdiction, alleging Appellant’s appeal was untimely under 28 U.S.C.

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§ 158(c)(2) and Fed. R. Bankr. P. 8002. Mot. at 1–2.

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An appellate court considers the issue of its own jurisdiction de novo. In re

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Gugliuzza, 852 F.3d 884, 889 (9th Cir. 2017) (citing In re Bunyan, 354 F.3d 1149, 1152

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(9th Cir. 2004); In re City of Desert Hot Springs, 339 F.3d 782, 787 (9th Cir. 2003)). On

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appeal, the appellant “has the burden of establishing that jurisdiction exists.” Melendres v.

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Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016) (quoting Data Disc, Inc. v. Sys. Tech.

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Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977)). The deadline to file an appeal is

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“mandatory and jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264 (1978)

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(internal quotation marks and citation omitted); see also Melendres, 815 F.3d at 649 (“[W]e

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are not at liberty to overlook a defect with the notice of appeal no matter how compelling

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an appellant’s argument may be.”). This rule also applies to federal bankruptcy appeals.

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In re Mouradick, 13 F.3d 326, 327–28 (9th Cir. 1994) (“[T]he untimely filing of a notice

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of appeal deprives the appellate court of jurisdiction to review the bankruptcy court’s

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order.”).

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A party to a bankruptcy proceeding has fourteen days to appeal a bankruptcy judge’s

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order. See 28 U.S.C. § 158(c)(2) (an appeal shall be taken within the time provided by

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Fed. R. Bankr. P. 8002); Fed. R. Bankr. P. 8002(a)(1) (notice of appeal must be filed within

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fourteen days after entry of the order being appealed). Additionally, Rule 8002 provides

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that a “bankruptcy court may extend the time to file a notice of appeal upon a party’s

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motion that is filed: (A) within the time prescribed by this rule; or (2) within 21 days after

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that time, if the party shows excusable neglect.” Fed. R. Bankr. P. 8002(d)(1).

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Appellant’s notice of appeal is untimely. The bankruptcy court entered its Order on

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Appellant’s motion in limine on October 14, 2020, and Appellant filed his notice of appeal

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19 days later on November 2, 2020. To be timely, Appellant’s notice of appeal needed to

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be filed on October 28, 2020 or earlier. Although Appellant does not address Appellee’s

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arguments regarding the timeliness of his appeal, see generally Opp’n, Appellant’s pro se
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status, in and of itself, does not excuse the late filing of his notice of appeal. In re Sattler,

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840 F. App’x 214, 215 (9th Cir. 2021) (“[The appellant]’s pro se status at certain stages of

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the proceedings is not by itself an extraordinary circumstance, and [the appellant] offered

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no evidence that anything about his pro se status prevented him from timely prosecuting

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appeals.”). Appellant had until November 18, 2020 (i.e., 21 days after the deadline to

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appeal), to ask the bankruptcy court to extend the time to file an appeal, but Mr. Grayton

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did not take that action either. Therefore, this Court does not have appellate jurisdiction to

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review the Order. In re Mouradick, 13 F.3d 326, 327 (9th Cir. 1994) (“[T]he untimely

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

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bankruptcy court’s order.” (citations omitted)).

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Accordingly, the Court finds Appellant’s appeal of the bankruptcy court’s order

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denying his motion in limine is time barred. Appellee’s motion to dismiss the appeal for

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lack of jurisdiction is GRANTED. The Court DISMISSES the appeal for lack of

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jurisdiction. The Clerk of Court SHALL CLOSE the file.

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IT IS SO ORDERED.
Dated: April 27, 2021

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20-CV-2152 JLS (AHG)