In Re: Kwong
ORDER granting 14 MOTION for Reconsideration but denying requested relief; denying as moot 13 MOTION to Stay. Signed by Judge Stefan R. Underhill on 06/20/2017. (Jamieson, K)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
IN RE MATTHEW JOHN KWONG,
No. 3:17-cv-00496 (SRU)
RULING AND ORDER
Matthew John Kwong has moved for reconsideration of my April 24, 2017 ruling
dismissing his bankruptcy appeal for lack of subject matter jurisdiction. I grant Kwong’s motion
but, after considering his arguments, I deny his requested relief and adhere to my earlier ruling.
Standard of Review
The standard for granting motions for reconsideration is strict; motions for
reconsideration “will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked—matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., 70 F.3d 255, 257
(2d Cir. 1995). Motions for reconsideration will not be granted where the party merely seeks to
relitigate an issue that has already been decided. Id. The three major grounds for granting a
motion for reconsideration in the Second Circuit are: (1) an intervening change of controlling
law, (2) the availability of new evidence, or (3) the need to correct a clear error or prevent
manifest injustice. Virgin Atl. Airways v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992) (citing 18 Charles A. Wright, et al., Federal Practice & Procedure § 4478).
Matthew John Kwong filed a voluntary petition for bankruptcy pursuant to Chapter 13 of
the Bankruptcy Code on March 9, 2016. See Bankr. Doc. No. 1. On December 16, 2016, the
Chapter 13 Standing Trustee, Molly T. Whiton (“the Trustee”), filed a motion to dismiss
Kwong’s case, asserting that he “failed to prosecute th[e] case and/or propose a confirmable
plan.” Bankr. Doc. No. 31. After notice, briefing, and a hearing, Judge Manning dismissed
Kwong’s case without prejudice on February 21, 2017.1 See Bankr. Doc. No. 51.
On March 3, 2017, Kwong filed a pro se motion for an extension of the automatic stay
imposed pursuant to 11 U.S.C. § 362, while he appealed Judge Manning’s order of dismissal to
this court. See Bankr. Doc. No. 53 (“Pursuant to Federal Rule of Bankruptcy Procedure § 8007,
the Petitioner . . . respectfully request[s] relief of an extension of the Automatic Stay . . . pending
appeal of his case to the U.S. District Court from an Order Granting Trustee’s Motion [t]o
Dismiss Chapter 13 Case . . . .”). On March 10, 2017, Judge Manning denied Kwong’s motion,
reasoning that, under 11 U.S.C. § 362(c)(2)(B), “[t]he automatic stay is no longer in place upon
dismissal of [the] case.” Bankr. Doc. No. 56, at 1 (citing 11 U.S.C. § 362(c)(2)(B) (“[T]he stay . .
. continues until . . . the time the case is dismissed . . . .”)).
Kwong then filed a notice of appeal of the dismissal order and a motion for leave to
proceed in forma pauperis2 on March 24, 2017. Bankr. Doc. No. 58; Doc. No. 1. Kwong’s
appeal was filed more than “14 days after entry of the judgment, order, or decree being
appealed.” See Fed. R. Bankr. P. 8002(a)(1). As a result, Kwong’s appeal was untimely, and I
lacked jurisdiction to hear the case. See In re Indu Craft, 749 F.3d 107, 115 (2d Cir. 2014)
(“[T]he time limit prescribed by Rule 8002(a) is jurisdictional,” and “in the absence of a timely
“[A] dismissal without prejudice in the bankruptcy context . . . [is] final and appealable” under
28 U.S.C. § 158. See Pal Family Tr. v. Ticor Title Ins., 490 B.R. 480, 482–85 (S.D.N.Y. 2013).
On both the docket of this court and of the bankruptcy court, the motion is misdescribed as a
“motion for leave to appeal.” See Bankr. Doc. No. 59; Doc. No. 2.
notice of appeal . . . , the district court is without jurisdiction to consider the appeal.”). Therefore,
on April 24, 2017, I issued a ruling and order dismissing Kwong’s appeal for lack of subject
matter jurisdiction. See Doc. No. 9. Kwong now asks that I reconsider that ruling.
In his motion for reconsideration, Kwong essentially argues that Judge Manning and I
should have construed Kwong’s motion to stay pending appeal to be a motion for relief from a
judgment or order.3 Unlike a motion for a stay pending appeal (made pursuant to Bankruptcy
Rule 8007(a)(1)(A)), a motion for relief from a judgment or order (made pursuant to Bankruptcy
Rule 9024) does toll the time to appeal until “the entry of the order disposing of the . . . motion.”
Fed. R. Bankr. P. 8002(b)(1). Kwong argues that the motion he filed on March 3, 2017—though
captioned a “motion for extension of automatic stay pending appeal”—was really a motion for
Judge Manning to reconsider her order dismissing his case. See Doc. No. 14. Because that
motion was made within 14 days of Judge Manning’s order, Kwong contends that his time to
appeal only began to run when Judge Manning denied the motion for reconsideration on March
10, 2017. See Bankr. Doc. No. 56. Kwong’s notice of appeal was filed exactly 14 days after that,
see Doc. No. 1, and so, Kwong argues, his appeal was timely and jurisdiction exists in this court.
I disagree. For several reasons, Kwong’s argument cannot “reasonably be expected to
alter the conclusion reached by the court.” See Shrader, 70 F.3d at 257. First, on its face,
Alternatively, Kwong contends that a motion to stay pending appeal is “a subset motion to
those, seeking ‘Relief from’ a ‘Judgment or Order.’” Doc. No. 14, at 10. He reasons that, under
Bankruptcy Rule 9024, “[Bankruptcy] Rule 8008 governs post-judgment motion practice after an
appeal has been docketed and is pending,” and that Bankruptcy Rule 8008, in turn, applies to
“timely motion[s] in the bankruptcy court for relief.” Id. (quoting Fed. R. Bankr. P. 8008 &
9024). But Kwong’s March 3, 2017 motion was made well before his “appeal ha[d] been
docketed and [was] pending.” Fed. R. Bankr. P. 8008. Thus, Bankruptcy Rule 8008 does not
apply here, regardless of whatever force Kwong believes it lends to his argument.
Kwong’s March 3, 2017 motion belies his attempt at recharacterization. Kwong entitled the
document “motion for extension of automatic stay pending appeal.” See Bankr. Doc. No. 53, at
1. In the body of the motion, he “request[ed] . . . an extension of the Automatic Stay . . . pending
appeal of his case to the U.S. District Court.” Id. Indeed, in the very first words of the motion,
Kwong specifically stated that the motion was made “[p]ursuant to . . . [Bankruptcy Rule] 8007”
(“Stay Pending Appeal”). Id.; Fed. R. Bankr. P. 8007. Thus, Kwong’s motion sought a stay
pending appeal, not reconsideration pursuant to Bankruptcy Rule 9024.
Furthermore, even if “a mischaracterization of a [Bankruptcy Rule] 9024 motion by [a]
[pro se] Debtor is not controlling,” In re Hill, 305 B.R. 100, 108–09 (Bankr. M.D. Fla. 2003),
nothing in Kwong’s March 3, 2017 motion suggests that it could fairly be read as a motion for
reconsideration. Kwong’s motion did not “ask the bankruptcy court to alter its findings,” see In
re Hoxie, 370 B.R. 288, 291 (S.D. Cal. 2006), to “alter or amend [the] judgment,” see In re
Shields, 150 B.R. 259, 260 (D. Colo. 1993), or to “vacate [its] order of dismissal of [Kwong’s]
bankruptcy case.” See In re Hill, 305 B.R. at 108. To the contrary, the motion announced that
Kwong intended immediately to “appeal . . . his case to the U.S. District Court.” Bankr. Doc. No.
53, at 1. Likewise, Judge Manning evidently did not think that Kwong’s motion sought
reconsideration of her order dismissing the case, because she promptly denied the motion
without reconsidering the merits of her earlier ruling. See Bankr. Doc. No. 56, at 1.
Kwong asserts that he intended to move for reconsideration, and that, had he filed a
separate motion pursuant to Bankruptcy Rule 9024, “he would have filed a needless redundancy
of two motions seeking the same relief . . . which, upon appeal to the district court, could have
potentially expanded into multi-litigated motions and respective notices of appeal.” Doc. No. 14,
at 8–9. To illustrate the point, Kwong includes in his present motion for reconsideration a
“[h]ypothetical” motion pursuant to Bankruptcy Rule 9024, which, he argues, would have
“transform[ed] his cause . . . into an exponentially bifurcating expansion of corollary civil
actions being simultaneously litigated within the contested jurisdictions of possibly no [fewer]
than four different federal courts.” Id. at 7, 9. Despite Kwong’s concerns, however, “[t]he power
of the federal courts to extend the time limits on the invocation of appellate jurisdiction is
severely circumscribed,” and I have no “equitable powers to alter appellate timelines” simply to
“better streamline the appellate process.” See United States ex rel. McAllan v. City of New York,
248 F.3d 48, 53 (2d Cir. 2001) (per curiam); Mendes, Junior Int’l Co. v. Banco do Brasil, S.A.,
215 F.3d 306, 312 (2d Cir. 2000) (discussing Fed. R. App. P. 4); Doc. No. 14, at 10. Kwong’s
sense of efficiency as a litigant cannot “confer jurisdiction on this [c]ourt” in the face of “limits
enacted by Congress.” In re Indu Craft, 749 F.3d at 113; McAllan, 248 F.3d at 53; see also
Bowles v. Russell, 551 U.S. 205, 213 (2007) (“Because Congress decides whether federal courts
can hear cases at all, it can also . . . prohibit federal courts from adjudicating an otherwise
legitimate class of cases after a certain period has elapsed from final judgment.”).
Kwong might intend to invoke the doctrine of “unique circumstances,” which renders a
“notice of appeal timely . . . ‘where a party has performed an act which, if properly done, would
postpone the deadline for filing his appeal and has received specific assurance by a judicial
officer that this act has been properly done.’” See Lichtenberg v. Besicorp Grp., 204 F.3d 397,
402 (2d Cir. 2000) (quoting Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989)). But
Kwong does not claim (or even imply) that Judge Manning gave him “assurance[s]” that he had
properly filed a motion pursuant to Bankruptcy Rule 9024. Id. The “doctrine of unique
circumstances has no application [w]here,” as here, “[a] party has simply erroneously interpreted
the rules with regard to the time for appeal.” Id. at 403 (other brackets and quotation marks
omitted). Moreover, “there is no indication in the record that [Kwong] shared with . . . [the]
judge [his] present vision of [the Bankruptcy Rule 8007] motion as one made also under
[Bankruptcy Rule 9024] or as one that would . . . extend [his] time to appeal.” See id. As a result,
“there is no basis for inferring” that Judge Manning “agree[d] to such an effect,” and Kwong
“has not met [his] burden of demonstrating any unique circumstances regarding [his] delay.” See
id. (motion for reargument under Local Rules did not toll time to appeal under Federal Rule of
Appellate Procedure 4); In re Ne. Mgmt. Servs., 267 B.R. 492, 495 (N.D.N.Y. 2001).
Finally, Kwong cannot escape the requirements of Bankruptcy Rule 8002 simply because
he “is not represented by counsel.” See In re Furst, 206 B.R. 979, 980 (Bankr. App. Panel 10th
Cir. 1997). “[T]he fact that [Kwong] does not have the advice of counsel . . . does not relieve him
of the responsibility to follow the same rules of procedure as represented parties.” In re Furst,
206 B.R. at 981 (quoting United States v. Heller, 957 F.2d 957 F.2d 26, 32 (1st Cir. 1992));
accord In re McDonald, 2004 WL 2931371, at *2 (Bankr. M.D. Fla. Oct. 22, 2004) (“[P]ro se
status does not excuse compliance with the Rules . . . .”) (citing In re Frontier Airlines, 108 B.R.
277, 278 (D. Colo. 1989)). “Filing deadlines . . . necessarily operate harshly and arbitrarily with
respect to individuals who fall just on the other side of them,” but, as the Supreme Court has
held, “if the concept of a filing deadline is to have any content, the deadline must be enforced.”
United States v. Locke, 471 U.S. 84, 101 (1985). I can identify nothing in Kwong’s motion “that
might reasonably be expected to alter the conclusion reached by the court.” Shrader, 70 F.3d at
257. Hence, I again hold that Kwong’s appeal was untimely and must be dismissed. See Fed. R.
Bankr. P. 8002(a); 28 U.S.C. § 158(c)(2).
I grant Kwong’s motion for reconsideration. On reconsideration, I adhere to my earlier
ruling that Kwong’s case must be dismissed for lack of subject matter jurisdiction.
Dated at Bridgeport, Connecticut, this 20th day of June 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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