In Re: Kwong

Filing 9

RULING AND ORDER dismissing appeal for lack of subject matter jurisdiction. The Clerk shall terminate all pending motions and close the case. Signed by Judge Stefan R. Underhill on 04/24/2017. (Jamieson, K)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

IN RE MATTHEW JOHN KWONG,
Appellant.

No. 3:17-cv-00496 (SRU)

RULING DISMISSING APPEAL FOR LACK OF JURISDICTION
Matthew John Kwong has appealed an order of Chief United States Bankruptcy Judge
Julie A. Manning dated February 21, 2017, which dismissed his Chapter 13 bankruptcy petition.
Under Federal Rule of Bankruptcy Procedure 8002(a), Kwong was required to file a notice of
appeal no later than March 7, 2017, two weeks after the entry of Judge Manning’s order. He did
not file a notice of appeal until March 24, 2017. Timely filing of the notice is a jurisdictional
prerequisite. Hence, I lack subject matter jurisdiction, and I dismiss Kwong’s appeal sua sponte.
I.

Standard of Review
A federal district court has jurisdiction to hear appeals of “final judgments, orders, and

decrees” of the bankruptcy court for the same district pursuant to 28 U.S.C. § 158(a). When
reviewing bankruptcy appeals, the district court reviews conclusions of law de novo and applies
the clearly erroneous standard to findings of fact. In re Ionosphere Clubs, 922 F.2d 984, 988 (2d
Cir. 1990). The district court may “affirm, modify, or reverse a bankruptcy court’s judgment,
order, or decree[,] or remand with instructions for further proceedings.” In re Indicon, 499 B.R.
395, 400 (D. Conn. 2013) (quoting former Federal Rule of Bankruptcy Procedure 8013).
To appeal from a bankruptcy court’s order, a party must file “a notice of appeal . . . with
the bankruptcy clerk within 14 days after entry of the judgment, order, or decree being
appealed.” Fed. R. Bankr. P. 8002(a)(1). “[T]he time limit prescribed by Rule 8002(a) is
jurisdictional,” and “in the absence of a timely notice of appeal . . . , the district court is without

jurisdiction to consider the appeal.” In re Indu Craft, 749 F.3d 107, 115 (2d Cir. 2014) (quoting
In re Siemon, 421 F.3d 167, 169 (2d Cir. 2005) (per curiam)). As the party seeking to invoke the
court’s jurisdiction, the appellant bears the burden to establish that jurisdiction. Thompson v.
Cnty. of Franklin, 15 F.3d 245, 249 (2d Cir. 1994) (citing Warth v. Seldin, 422 U.S. 490, 518
(1975)). Because “jurisdiction goes to the heart of a federal court’s power,” I am “obligat[ed] to
consider the presence or absence of subject matter jurisdiction sua sponte.” In re Tronox, Inc., __
F.3d __, __, 2017 WL 1403001, at *20 (2d Cir. 2017) (internal quotation marks omitted).
II.

Background
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. 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 . . . .”)).

1

“[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).
2

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. On March 29,
2017, Kwong filed another motion for a stay pursuant to Rule 8007(a) in this court. Doc. No. 5. I
set the briefing deadlines on March 30, 2017. Doc. No. 6.
III.

Discussion
Federal Rule of Bankruptcy Procedure 8002(a) provides that a party seeking to appeal

from a bankruptcy court’s order must file “a notice of appeal . . . with the bankruptcy clerk
within 14 days after entry of the judgment, order, or decree being appealed.” Fed. R. Bankr. P.
8002(a)(1). The 14-day period includes Saturdays, Sundays, and legal holidays, except that “if
the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of
the next day that is not a Saturday, Sunday, or legal holiday.” Fed. R. Bankr. P. 9006(a)(1). In
the present case, the order of dismissal was entered February 21, 2017. Kwong was required to
file a notice of appeal by March 7, 2017, but he did not do so until March 24, 2017. See Doc. No.
1. Therefore, I lack jurisdiction to hear his appeal. In re Indu Craft, 749 F.3d at 115.
The Second Circuit repeatedly has held that “the time limit contained in Rule 8002(a) is
jurisdictional.” In re Coudert Bros. LLP, 673 F.3d 180, 185 (2d Cir. 2012) (quoting In re
Siemon, 421 F.3d at 169); see also, e.g., In re Indu Craft, 749 F.3d at 115; In re Harris, 464 F.3d
263, 269–70 (2d Cir. 2006) (“[W]here the debtor does not file a timely notice of appeal . . . the
court has no choice but to dismiss the case.”). As the Second Circuit has noted, 28 U.S.C. §
158—the statute that empowers district courts to hear appeals from bankruptcy courts—
explicitly provides that appeals “shall be taken . . . in the time provided by Rule 8002.” In re

2

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.
3

Indu Craft, 749 F.3d at 114–15 (quoting 28 U.S.C. § 158(c)(2)). “Section 158(c)(2) . . .
determin[es] jurisdiction by incorporating the time limits prescribed in Rule 8002(a),” id. at 115
(quoting In re Latture, 605 F.3d 830, 837 (10th Cir. 2010)), and, in consequence, “[f]ailure to
file a timely notice of appeal . . . deprives the district court of jurisdiction to review the
bankruptcy court’s order.” In re Universal Minerals, 755 F.2d 309, 312 (2d Cir. 1985).
There are several means to extend the 14-day period for appeal, but none helps Kwong
here. First, “[i]f a party timely files in the bankruptcy court any of” four specified motions, then
“the time to file an appeal runs . . . from the entry of the order disposing of the last such
remaining motion.” Fed. R. Bankr. P. 8002(b)(1). Those motions are (i) “to amend or make
additional findings under Rule 7052,” (ii) “to alter or amend the judgment under Rule 9023,” (iii)
“or a new trial under Rule 9023,” or (iv) “for relief under Rule 9024.” Id. Kwong did not file any
of those motions in the bankruptcy court. The motion he did file—for a stay pending appeal—
“did not toll the time to file a notice of appeal to this court.” Argus Grp. 1700 v. Steinman, 206
B.R. 757, 767–68 (E.D. Pa. 1997) (noting that “a motion . . . for a stay pending appeal” is not
listed as “toll[ing] time to appeal” in Rule 8002(b)). Thus, Kwong’s belated appeal is not
rendered timely by Rule 8002(b)(1).
Second, “the bankruptcy court may extend the time to file a notice of appeal upon a
party’s motion that is filed (A) within the time prescribed [i.e., 14 days] . . . ; or (B) within 21
days after that time, if the party shows excusable neglect.” Fed. R. Bankr. P. 8002(d)(1). Kwong
has neither filed such a motion nor made any showing of “excusable neglect.”3 See id.
Furthermore, Rule 8002(d)(1) “requires that a motion for extension to be filed in the bankruptcy

3

“Although “pro se status is relevant in determining whether there has been excusable neglect,”
such status alone is insufficient for a finding of excusable neglect.” In re Soundview Elite Ltd.,
512 B.R. 155, 159 (S.D.N.Y. 2014).
4

court.” In re Universal Minerals, 755 F.2d at 312 (emphasis added); see Fed. R. Bankr. P.
8002(d)(1). Lacking jurisdiction, I cannot “pass upon any claim . . . for an extension of time for
filing.” In re Universal Minerals, 755 F.2d at 312. Finally, even had Kwong properly filed a
motion with the bankruptcy court, “[t]he bankruptcy court may not extend the time to file a
notice of appeal if the judgment, order, or decree appealed from . . . grants relief from an
automatic stay under [section] 362.” Fed. R. Bankr. P. 8002(d)(2); see Fed. R. Bankr. P. 8002
Adv. Comm. Note (1997 Amend.) (“These types of orders are often relied upon immediately
after they are entered and should not be reviewable on appeal after the expiration of the original
appeal period . . . .”). As Judge Manning noted, her order of dismissal terminated the automatic
stay under 11 U.S.C. § 362(c)(2)(B). See Bankr. Doc. No. 56, at 1. As a result, Judge Manning
could not have extended the time for Kwong to file his notice of appeal.
“[Rule] 8002(a) is jurisdictional, even for pro se litigants,” Chaturvedi v. O’Connell, 335
F. App’x 145, 146 (2d Cir. 2009) (summary order) (citing In re Siemon, 421 F.3d at 169), and
courts in this circuit have held that even a one-day delay in filing the notice of appeal is enough
to deprive the court of jurisdiction. See, e.g., In re Residential Capital, 519 B.R. 606, 610
(S.D.N.Y. 2014) (pro se bankruptcy appeal dismissed for lack of jurisdiction when filed one day
late); Surabian v. Picard, 2014 WL 917091, at *1 (S.D.N.Y. Mar. 7, 2014) (two days late);
Chaturvedi v. O’Connell, 2008 WL 2276690, at *2 (S.D.N.Y. June 2, 2008) (one day late), aff’d,
335 F. App’x 145. Here, Kwong filed a notice of appeal of the dismissal order on March 24,
2017, more than two weeks after the expiration of the 14-day period in which he could file an
appeal. Therefore, I lack jurisdiction to hear his case, and the appeal must be dismissed.

5

IV.

Conclusion
Kwong’s bankruptcy appeal was untimely filed, which deprives the district court of

jurisdiction under Rule 8002(a) and 28 U.S.C. § 158(c)(2). As such, I dismiss Kwong’s case sua
sponte for lack of subject matter jurisdiction. The Clerk is directed to terminate the case.

So ordered.
Dated at Bridgeport, Connecticut, this 24th day of April 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

6