Grason v. Germeraad et al
Filing
9
OPINION: The Trustee/Appellee's Motion to Dismiss Appeal by Appellant Ronald Grason Sr. (d/e 8) is GRANTED. This appeal is DISMISSED for lack of jurisdiction. Alternatively, the Report and Recommendation (d/e 7) is ACCEPTED by this Court. Grason's appeal is dismissed for Grason's failure to pay the filing fee. THIS CASE IS CLOSED. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 9/20/2017. (GL, ilcd)
E-FILED
Wednesday, 20 September, 2017 11:48:05 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
IN RE: RONALD JAMES GRASON, )
)
Debtor,
)
)
RONALD J. GRASON,
)
)
Appellant
)
)
v.
)
)
CHAPTER 13 TRUSTEE JOHN H. )
GERMERAAD and ILLINIOS
)
DEPARTMENT OF REVENUE,
)
)
Appellees.
)
No. 3:17-CV-03170
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Report and
Recommendation to the District Court (d/e 7) filed by United
States Chief Bankruptcy Judge Mary P. Gorman and the
Trustee/Appellee’s Motion to Dismiss Appeal by Appellant Ronald
Grason Sr. (d/e 8) filed by John H. Germeraad, Chapter 13
Trustee. Because Appellant Ronald J. Grason’s appeal is untimely,
the Motion to Dismiss is GRANTED. Alternatively, the Court
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ACCEPTS Judge Gorman’s Report and Recommendation and
dismisses the appeal for failure to pay the filing fee.
I. BACKGROUND
On July 19, 2017, the bankruptcy court dismissed Grason’s
Chapter 13 bankruptcy case because he had a pending Chapter 7
case relating directly to the debts at issue in the Chapter 13 case.
See Record on Appeal, Order at 6-9 (d/e 6). Grason thereafter had
14 days to file his notice of appeal with the bankruptcy clerk. See
Fed. R. Bankr. P. 8002(a)(1). This period ended on August 2,
2017.
On August 3, 2017, Grason filed in the bankruptcy court his
notice of appeal and a Motion to Proceed in Forma Pauperis. On
August 4, 2017, the bankruptcy court denied Grason’s Motion to
Proceed In Forma Pauperis based on the discrepancies between the
income and expenses listed on his case documents and those
listed in his Motion to Proceed In Forma Pauperis. Order at 2 (d/e
2). The bankruptcy court granted Grason until August 18, 2017 to
pay the $298 filing fee. To date, Grason has not paid the filing fee.
Grason also filed a “Notice of Appeal and Statement of
Election” that the bankruptcy court construed as a request to have
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the appeal reviewed directly by the Seventh Circuit. On August 4,
2017, the bankruptcy court denied Grason’s request to have the
appeal reviewed directly by the Seventh Circuit. Order at 2 (d/e 4).
In the Order denying the request to have the appeal reviewed
directly by the Seventh Circuit, the bankruptcy court noted that
the notice of appeal was filed one day late. Id. at 3.
On August 21, 2017, Judge Gorman filed a Report and
Recommendation (d/e 7) pursuant to 28 U.S.C. § 157(c)(1).1 Judge
Gorman recommended that the appeal be dismissed for failure to
pay the filing fee. On August 22, 2017, this Court issued a Text
Order advising Grason that any objections to the Report and
Recommendation must be filed on or before September 5, 2017.
Grason did not file any objections.
Section 157(c)(1) provides: “A bankruptcy judge may hear a proceeding that
is not a core proceeding but that is otherwise related to a case under title 11.
In such proceeding, the bankruptcy judge shall submit proposed findings of
fact and conclusions of law to the district court, and any final order or
judgment shall be entered by the district judge after considering the
bankruptcy judge's proposed findings and conclusions and after reviewing de
novo those matters to which any party has timely and specifically objected.”
1
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On August 28, 2017, the Trustee filed a motion to dismiss the
appeal for lack of jurisdiction. On that same day, this Court
entered a Text Order advising Grason that, if he did not respond to
the motion, the motion would be granted, if appropriate, and the
case would be terminated. The Court granted Grason up to and
including September 14, 2017 to file a response. No response was
filed.
II. ANALYSIS
District courts have jurisdiction to hear appeals from final
judgments, orders, and decrees of a bankruptcy court. 28 U.S.C.
§ 158(a). An appeal under § 158(a) is “taken in the same manner
as appeals in civil proceedings are taken to the courts of appeals
from the district courts and in the time provided by Rule 8002 of
the Bankruptcy Rules.” 28 U.S.C. § 158(c)(2).
Rule 8002 of the Federal Rules of Bankruptcy Procedure
provides that, subject to exceptions not applicable in this case, a
notice of appeal must be filed with the bankruptcy clerk within 14
days after entry of the judgment, order, or decree being appealed.
Fed. R. Bankr. P. 8002(a)(1); In re Arbuckle, 988 F.2d 29, 31 (5th
Cir. 1993) (finding that the additional three days that are added to
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a prescribed period under Federal Rule of Bankruptcy Procedure
9006(f) apply only when the time period for filing begins running
from the date of service and does not apply when the time period
begins running from the date of entry, as is the case for the time
period for filing a notice of appeal); see also In re Wigoda, 11 F.
App’x 624, 625 (7th Cir. 2001) (citing Arbuckle and holding that
the additional three days do not apply to the time period for filing a
notice of appeal). The notice of appeal must be accompanied by
the prescribed fee. Fed. R. Bankr. P. 8003(a)(3)(C).
The bankruptcy court may extend the time to file a notice of
appeal, subject to certain exceptions not applicable here. Fed. R.
Bankr. P. 8002(d)(1). The motion seeking an extension of time
must be filed within the time prescribed by Rule 8002 or within 21
days after that time, if the party shows excusable neglect. Fed. R.
Bankr. P. 8002(d)(1)(A), (B).
In this case, the notice of appeal was due on August 2, 2017.
Grason did not file the notice of appeal until August 3, 2017. On
August 4, 2017, the bankruptcy court advised Grason that the
notice of appeal was untimely. Order at 3 (d/e 4). Grason never
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sought an extension of time under Rule 8002, and the time for
doing so has since expired.
The filing of the notice of appeal is jurisdictional. In re
Sobczak-Slomczewski, 826 F.3d 429, 432 (7th Cir. 2016) (affirming
the dismissal for lack of jurisdiction where the notice of appeal was
filed one day late). Therefore, the Court dismisses this appeal for
lack of jurisdiction.
Even if this Court had jurisdiction, the Court would dismiss
the appeal due to Grason’s failure to pay the filing fee. The failure
to take any step other than to timely file the notice of appeal does
not affect the validity of the appeal but is a basis for the district
court or bankruptcy appellate panel to dismiss the appeal. Fed. R.
Bankr. P. 8003(a)(2).
On August 21, 2017, Judge Gorman recommended that the
appeal be dismissed because Grason failed to pay the filing fee
after being given sufficient additional time to pay. Report &
Recommendation at 4 (and also noting that Grason’s failure to
comply with the bankruptcy court’s “order requiring payment of
the filing fee should not be ignored”). Grason has failed to file any
objections to the Report and Recommendation. See, e.g., Video
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Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986)
(finding that the failure to object to the report and recommendation
waives the right to appeal all issues). The Court, therefore,
presumes that Grason has no objection, and the Court accepts the
Report and Recommendation.
In addition, the Court agrees with Judge Gorman that
dismissal for failure to pay the applicable fee is warranted. See
Fed. R. Bankr. P. 8003(a)(2) (failure to take any step required to
appeal other than timely filing the notice of appeal is a basis to
dismiss the appeal); Bernegger v. King, No. 10-CV-1158, 10-CV1159, 2011 WL 2518788 at *1 (E.D. Wis. June 23, 2011) (noting
that dismissal of the appeal for the untimely payment of the filing
fee was warranted but ultimately dismissing on other grounds).
The bankruptcy court denied Grason’s request to proceed in forma
pauperis and gave Grason additional time to pay the filing fee.
Grason failed to do so. Therefore, the Court accepts the Report
and Recommendation and dismisses the appeal for failure to pay
the filing fee.
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III. CONCLUSION
For the reasons stated, the Trustee/Appellee’s Motion to
Dismiss Appeal by Appellant Ronald Grason Sr. (d/e 8) is
GRANTED. This appeal is DISMISSED for lack of jurisdiction.
Alternatively, the Report and Recommendation (d/e 7) is
ACCEPTED by this Court. Grason’s appeal is dismissed for
Grason’s failure to pay the filing fee. THIS CASE IS CLOSED.
ENTER: September 20, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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