AKERS et al v. BEAL BANK

Filing 20

MEMORANDUM OPINION re 19 Order granting Beal Bank's Motion to Dismiss. Signed by Judge Christopher R. Cooper on 1/31/2018. (lccrc2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARTHA AKERS,
Appellant,
v.

Case No. 17-cv-1488 (CRC)

BEAL BANK,
Appellee.

MEMORANDUM OPINION
Pro se appellant Martha Akers noticed an appeal from an order by the Bankruptcy Court
dismissing her adversary proceeding against Beal Bank. Beal Bank has moved for the Court to
dismiss Akers’s appeal or, alternatively, for summary affirmance. The Court issued a Fox/Neal
Order to Akers on December 21, 2017, directing her to respond to Beal Bank’s motion by
January 5, 2018 and warning that failure to do so could result in the dismissal of her case. See
Order (Dec. 21, 2017); see also Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988) (per
curiam). Akers has not filed a response.
Beal Bank contends that this case should be dismissed because Akers’s untimely notice
of appeal strips this Court of jurisdiction. Beal Bank Mot. Dismiss Appeal ¶ 6. Under Federal
Rule of Bankruptcy Procedure 8002(a), a party must file a notice of appeal with the bankruptcy
clerk within 14 days of the entry of the order seeking to be appealed. This time period can be
extended by the bankruptcy court by a motion within that 14-day period or by a motion making a
showing of excusable neglect filed within 21 days after that 14-day period ends. Fed. R. Bankr.
P. 8002(d)(1).
Akers’s notice of appeal was not filed within the limits prescribed by Rule 8002(a). The
order dismissing her adversary proceeding was entered on May 2, 2017. The subsequent order

barring her from filing subsequent adversary proceedings was entered on May 26, 2017. Both
orders were mailed to her the same day they were entered. Akers’s notice of appeal was filed on
June 26, 2018. This comes over a month after the two orders in her adversary proceeding were
issued, more than the requisite fourteen days. Nor did Akers request that the bankruptcy court
extend her period of time in which to file an appeal. Thus, Akers’s notice of appeal is not timely.
Beal Bank argues that this flaw is jurisdictional. The courts of appeals that have
confronted this question have all agreed. See, e.g., In re Sobczak-Slomczewski, 826 F.3d 429,
432 (7th Cir. 2016) (per curiam); In re Berman-Smith, 737 F.3d 997, 1001–03 (5th Cir. 2013)
(per curiam); In re Caterbone, 640 F.3d 108, 112–14 (3d Cir. 2011); In re Latture, 605 F.3d 830,
833–37 (10th Cir. 2010); see also Matter of Kite, 2018 WL 400743, at *3 (5th Cir. Jan. 12, 2018)
(per curiam) (“Every other court of appeals to consider Rule 8002(a) post-Kontrick and Bowles
has stated that the rule is jurisdictional.”).
So, too, does this Court. The Supreme Court has “long held that the taking of an appeal
within the prescribed time is ‘mandatory and jurisdictional.’” Bowles v. Russell, 551 U.S. 205,
209 (2007) (citation omitted); see also id. at 214 (“Today we make clear that the timely filing of
a notice of appeal in a civil case is a jurisdictional requirement.”). Additionally, the statute
providing district courts jurisdiction over bankruptcy appeals states that such appeals “shall be
taken . . . in the time provided by Rule 8002 of the Bankruptcy Rules.” 28 U.S.C. § 158(c)(2).
Thus, Congress has imposed a timeliness requirement by statute—and has tied that timeliness
requirement to the jurisdiction of the district courts. See, e.g., In re Latture, 605 F.3d at 837; cf.
Kontrick v. Ryan, 540 U.S. 443, 453 (2004) (claims processing rules not set by statute are not
jurisdictional). For these reasons, the Court agrees that the time limit in Rule 8002(a) is
jurisdictional.

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Akers’s failure to file a timely notice of appeal—or to seek an extension from the
bankruptcy court—deprives the Court of jurisdiction. The Court will thus dismiss her appeal. A
separate Order shall accompany this memorandum opinion.

CHRISTOPHER R. COOPER
United States District Judge
Date: January 31, 2018

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