In Re: Regina Heisler
Filing
13
ORDER AND REASONS granting Regina Heisler's 9 MOTION for Extension of Time to File Opening Appellant's Brief. FURTHER ORDER that defendant file its opposition to Regina Heisler's 11 MOTION to Expedite by TUESDAY, 11/23/2021 at 5:00 PM. FURTHER ORDER dismissing with prejudice Henry Klein's appeal of the Bankruptcy Court's August 13, 2021 Memorandum Opinion and Order, as further stated herein. Signed by Judge Susie Morgan on 11/18/2021. (tsf)
Case 2:21-cv-01636-SM-MBN Document 13 Filed 11/18/21 Page 1 of 5
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: REGINA B. HEISLER
CIVIL ACTION
NO. 21-1636
SECTION: “E” (5)
ORDER AND REASONS
Before the Court is Appellant Regina Heisler’s motion seeking additional time to
file an opening appellant’s brief.1 Also before the Court is a motion seeking to “expedite
the time for the filing of the Appellee Brief.”2
On August 13, 2021, the Eastern District of Louisiana Bankruptcy Court entered a
Memorandum Opinion and Order in Regina Heisler’s Chapter 7 bankruptcy proceeding,
Case No. 20-bk-11509, currently pending before Judge Grabill.3 On August 26, 2021,
Regina Heisler and Henry Klein timely filed in the record of the bankruptcy court a joint
notice of appeal4 of the August 13, 2021 Memorandum Opinion and Order.5 The
bankruptcy clerk transmitted the joint notice of appeal to the district court on August 27,
2021,6 and the appeal was assigned to this Court as Case No. 21-cv-1636.7 On appeal,
Regina Heisler is represented by Darryl Landwehr, and Henry Klein is proceeding pro se.8
R. Doc. 9.
R. Doc. 11.
3 In re Regina B. Heisler, R. Doc. 402, Case No. 20-bk-11509 (Aug. 13, 2021 Bankr. E.D. La.).
4 Id. at R. Doc. 410.
5 Id. at R. Doc. 402.
6 See R. Doc. 1.
7 Under Federal Rules of Bankruptcy Procedure 8002 and 8003, an appeal from an order of the bankruptcy
court may be taken only by filing a notice of appeal with the bankruptcy clerk within fourteen days after the
entry of the order being appealed. Under Federal Rule of Bankruptcy Procedure 8003(d)(1), the bankruptcy
clerk must promptly transmit the notice of appeal to the district court.
8 R. Doc. 1.
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2
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Once the bankruptcy record for appeal is compiled and completed, “the bankruptcy
court clerk must transmit to the clerk for the court where the appeal is pending either the
record or a notice that the record is available electronically.”9 Rule 8010(b)(3) requires
that, “[u]pon receiving the record or notice that it is available electronically, the district
[court] clerk must enter that information on the docket and promptly notify all parties to
the appeal.”10
Under Federal Rule of Bankruptcy Procedure 8018, the “appellant must serve and
file a brief within 30 days after the docketing of notice that the record has been
transmitted or is available electronically.”11 The Court has found no Fifth Circuit case
directly on point deciding when the thirty-day period for filing an appellant’s brief begins
to run, the date the bankruptcy court clerk transmits the record to the district court or the
date the clerk for the district court notifies all parties to the appeal the record has been
transmitted. The Eleventh Circuit Court of Appeals considered Rule 8018’s language
regarding commencement of the thirty-day period for filing an appellant’s brief and held
the period begins on the date the district court dockets notice of the transmittal of the
bankruptcy record.12 The Eleventh Circuit’s interpretation is consistent with the language
of Rule 8018, which treats the transmittal/electronic availability of the record, and the
docketing of notice of receipt of same, as two distinct events. Under the plain language of
Rule 8018, the Court finds the thirty-day period commences when the district court clerk
has notified all parties to the appeal that the record is available electronically pursuant to
Rule 8010(b)(3).
FED. R. BANKR. P. 8010(b)(1).
FED. R. BANKR. P. 8010(b)(3).
11 FED. R. BANKR. P. 8018(a)(1).
12 In re Tucker, 665 F. App'x 841, 842 (11th Cir. 2016).
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10
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The documents comprising the complete record in Case No. 20-bk-11509 were
transmitted from the bankruptcy court to this Court, and were entered on the docket of
this Court, on October 6, 2021.13 On October 7, 2021, the Clerk of Court issued a “Notice
of Parties — Bankruptcy Appeals to District Court.”14 Because the Clerk of Court docketed
the notice on this Court’s docket on October 7, 2021,15 the thirty-day deadline commenced
on October 7, 2021, and ended on November 6, 2021, a Saturday. Accordingly, Regina
Heisler and Henry Klein were required to file a brief on or before Monday, November 8,
2021.
On November 8, 2021, Henry Klein, purporting to act on behalf of Regina Heisler,
filed a motion16 for extension of time to file appellant’s brief as “an accommodation for
Darryl Landwehr,” because Mr. Landwehr had recently moved offices and his internet
was not yet operable.17 The Clerk of Court marked the motion as deficient because Klein
did not indicate the motion was unopposed, and, did not include a memorandum in
support or a notice of submission. The Clerk of Court imposed a deficiency remedy
deadline of November 16, 2021. Henry Klein and Darryl Landwehr refiled the motion for
extension of time curing the deficiencies on November 15, 2021, and attached the
appellant’s opening brief.18 The appellee has not argued the filing date for the cured
motion for extension of time does not relate back to November 8, 2021, and the Court
finds no support for this position.
See R. Doc. 4.
See R. Doc. 5.
15 Id.
16 See R. Doc. 6.
17 Id. at p. 1.
18 See R. Docs. 9, 9-2, and 9-3.
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Rule 8018 requires the appellant to file and serve a brief within 30 days after the
docketing of notice that the record has been transmitted or is available electronically.19
Under Rule 9006(b)(1), “when an act is required or allowed to be done at or within a
specified period . . . the court for cause shown may . . . order the period enlarged if the
request therefor is made before the expiration of the period originally prescribed.”20
Regina Heisler’s request for an extension of time was filed before the expiration of the
period originally prescribed. In support of her request for an extension of time, Regina
Heisler explains Darryl Landwehr moved his practice on October 30, 2021, and his
internet and telephone services had been inoperable as a result of the move.21 The Court
concludes Regina Heisler has sufficiently shown cause why the time for her to file her
opening brief should be extended, and that an extension of time for the filing of the
opening appellant’s brief is warranted.
Regina Heisler also filed a motion to expedite, seeking to expedite the time for
filing an appellee’s brief.22 The Court has ordered the appellant’s brief to be filed in the
record this date. Under Rule 8018(a)(2), the appellee’s brief is due 30 days thereafter.23
Regina Heisler argues the briefing schedule should be expedited because the Trustee in
her Chapter 7 bankruptcy proceeding filed an adversary proceeding against her
daughters, seeking “to take the house where Regina Heisler lives.”24 Regina Heisler also
points to the fact that “the Trustee made a demand for paperwork on two sets of Jet Skis
and a Boat plus all of Regina Heisler’s jewelry.”25 The parties are well-acquainted with the
See FED. R. BANKR. P. 8018(a)(1).
See FED. R. BANKR. P. 9006(b)(1).
21 See R. Doc. 6. Darryl Landwehr filed a reply memorandum (R. Doc. 8) further showing cause why the
extension of time was needed.
22 R. Doc. 11.
23 FED. R. BANKR. P. 8018(a)(2).
24 R. Doc. 11-4 at p. 1.
25 Id.
19
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facts of this case and an extensive time for briefing on the motion to expedite is not
required. Although counsel for Regina Heisler assumes the motion to expedite is opposed,
counsel failed to set the motion for submission. Rather than marking the motion deficient,
the Court will set the motion to expedite for submission on Wednesday, November
24, 2021 and require the appellee to file its opposition to the motion, if any, on or before
Tuesday, November 23, 2021 at 5:00 p.m.
Accordingly;
IT IS HEREBY ORDERED that Regina Heisler’s Motion for Extension of Time
to File Opening Appellant's Brief26 is GRANTED. Regina Heisler’s Opening Appellant’s
Brief shall be filed on the record.27
IT IS FURTHER ORDERED that Girod LoanCo, LLC shall file its opposition, if
any, to Regina Heisler’s Motion to Expedite28 by Tuesday, November 23, 2021 at
5:00 p.m.
IT IS FURTHER ORDERED that Henry Klein’s appeal of the Bankruptcy
Court’s August 13, 2021 Memorandum Opinion and Order29 is HEREBY DISMISSED
WITH PREJUDICE.30
New Orleans, Louisiana, this 18th day of November, 2021.
______________________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
26 R.
27 R.
Doc. 9.
Doc. 9-3.
28 R. Doc. 11
29 In re Regina B. Heisler, R. Doc. 402, Case No. 20-bk-11509 (Aug. 13, 2021 Bankr. E.D. La.).
30 Henry Klein appears as co-appellant in the Notice of Appeal. See id. at R. Doc. 410. The motion for
extension of time to file appellant’s opening brief was filed only on behalf of the interests of Regina Heisler
(see R. Doc. 6, 9), and Henry Klein has not filed an appellant’s brief. As a result, his appeal is dismissed
with prejudice.
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