Premiere One Landscapes, LLC v. Hrkal et al
Filing
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MEMORANDUM OPINION AND ORDER; Appellant Premiere One, Inc.'s appeal is DISMISSED WITH PREJUDICE (Written Opinion). Signed by Judge Ann D. Montgomery on 10/02/2014. (TLU)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Premier One Landscapes, LLC,
MEMORANDUM OPINION
AND ORDER
Civil No. 14-1412 ADM
Appellant,
v.
Steven John Hrkal and
Kimberly Colleen Hrkal,
Appellees.
______________________________________________________________________________
I. INTRODUCTION
This matter is before the Court based on the Court’s obligation to consider whether it has
subject matter jurisdiction in every case. See Hart v. United States, 630 F.3d 1085, 1089 (8th
Cir. 2011) (stating a court has a responsibility to consider sua sponte whether it has subject
matter jurisdiction where the court believes subject matter jurisdiction may be lacking). For the
reasons set forth below, the Court finds it lacks subject matter jurisdiction. The case is therefore
dismissed with prejudice.
II. BACKGROUND
Appellant appeals United States Bankruptcy Judge Michael E. Ridgway’s March 11,
2014 Order [Docket No. 4, Attach. 10] which dismissed Appellant’s bankruptcy adversary
proceeding with prejudice. See Notice of Appeal [Docket No. 1] at 1. Appellant elected to have
the District Court hear its appeal. Statement of Election [Docket No. 1, Attach. 2].
Appellant filed the Notice of Appeal on April 8, 2014, 28 days after the Bankruptcy
Court’s Order dismissing the adversary proceeding. Federal Rule of Bankruptcy Procedure 8002
requires a notice of appeal to be “filed with the clerk within 14 days of the date of the entry of
the judgment, order, or decree appealed from.” Fed. R. Bankr. P. 8002(a).
After the Notice of Appeal was filed, but before it was transmitted to this Court,
Appellant filed a motion in Bankruptcy Court seeking to extend the time to appeal pursuant to
Bankruptcy Rule 8002(c) (“Motion to Extend”).1 See Mot. to Extend [Docket No. 4, Attach.
11]. A hearing was held on May 1, 2014. At the hearing, Appellant argued that its failure to file
the Notice of Appeal within 14 days was the result of excusable neglect because Appellant’s
counsel used a computer software application to calculate the appeal period and the software
application erroneously indicated the filing deadline was April 10, 2014, rather than the correct
of March 25, 2014. Appellant further argued that its counsel briefly researched the deadline for
filing an appeal from a Bankruptcy Court order, but erroneously concluded the appeal period
was 30 days, rather than 14 days.
The Bankruptcy Court orally denied Motion to Extend, finding the reasons Appellant
failed to timely file a Notice of Appeal did not constitute excusable neglect. The Bankruptcy
Court thoroughly stated on the record the bases for its ruling, and entered a summary order
denying the Motion to Extend the following day, May 2, 2014. See Order, May 2, 2014 [Docket
No. 4, Attach. 13]. Appellant did not appeal the May 2, 2014 Order denying the Motion to
Extend.
On May 6, 2014, Appellant’s appeal of the Bankruptcy Court’s March 11, 2014 Order
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Federal Rule of Bankruptcy Procedure 8002(c)(2) states in relevant part:
A request to extend the time for filing a notice of appeal must be
made by written motion filed before the time for filing a notice of
appeal has expired, except that such a motion filed not later than 21
days after the expiration of the time for filing a notice of appeal may
be granted upon a showing of excusable neglect.
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was transmitted from Bankruptcy Court to this Court. See Clerk’s Notice of Receipt and
Assignment [Docket No. 7] (“Clerk’s Notice of Receipt”).2 The Clerk’s Notice of Receipt
included a briefing schedule instructing Appellant to file a brief within 14 days. Appellant did
not file a brief or take any other action to prosecute its appeal, nor did it voluntarily dismiss the
appeal.
On September 17, 2014, this Court issued an Order stating that it appeared the Court
lacked jurisdiction over the appeal based on Appellant’s failure to timely file the Notice of
Appeal. See Order, Sept. 17, 2014 [Docket No. 8] (citing Veltman v. Whetzal, 93 F.3d 517, 520
(8th Cir. 1996) (“In general, failure to file a timely notice of appeal from a bankruptcy court’s
order deprives the district court of jurisdiction to review that order.”)). The Order stated that if
Appellant disagreed with the Court’s jurisdictional analysis, it should file a memorandum of law
explaining why the case should not be dismissed, and that if no brief were filed, the case would
be dismissed. Id. at 2.
Appellant filed a memorandum of law stating in relevant part: “In its Order of May 2,
2014, the Bankruptcy Court found no excusable neglect in this matter. However, Appellant
disagrees with the Court’s analysis. As Appellant is able to evidence excusable neglect in this
matter, this Court has jurisdiction over the present appeal.” Appellant’s Mem. Law [Docket No.
9] at 5.
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When a notice of appeal is filed in Bankruptcy Court, the Local Rules for the
Bankruptcy Court in this district require the clerk of Bankruptcy Court to transmit the notice of
appeal to the District Court within 30 days. See Local Bankr. R. 8007-2 (stating “[w]ithin 30
days after the notice of appeal is filed . . . the clerk shall transmit to the clerk of district court . . .
the notice of appeal”) (emphasis added). Therefore, even though Appellant’s Notice of Appeal
was untimely and the Motion to Extend had been denied, the clerk of Bankruptcy Court was
required to transmit the appeal to this Court.
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III. DISCUSSION
Appellant’s argument fails for two reasons. First, Appellant did not appeal the
Bankruptcy Court’s May 2, 2014 Order. Therefore, the issue of whether Appellant has shown
excusable neglect is not before the Court.
Second, even if the May 2, 2014 Order had been appealed, this Court would affirm.
“When a bankruptcy court’s judgment is appealed to the district court, the district court acts as
an appellate court and reviews the bankruptcy court’s legal determinations de novo and findings
of fact for clear error.” In re Falcon Prods., Inc., 497 F.3d 838, 840-41 (8th Cir. 2007) (quoting
In re Fairfield Pagosa, Inc., 97 F.3d 247, 252 (8th Cir.1996)). Here, the Bankruptcy Court’s
factual findings were not erroneous because Appellant does not dispute that its counsel had
researched the deadline for appealing a Bankruptcy Court order and erroneously concluded that
the appeal period was 30 days, rather than 14 days. Further, the Bankruptcy Court correctly
determined that these circumstances did not constitute excusable neglect. The Supreme Court
has held that “inadvertence, ignorance of the rules, or mistakes construing the rules do not
usually constitute ‘excusable neglect.’” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 392 (1993). The Eighth Circuit has similarly found that a lawyer’s
“misapplication of clear and unambiguous procedural rules cannot excuse his failure to file a
timely notice of appeal.” Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 464 (8th Cir.
2000); accord Ceridian Corp. v. SCSC Corp., 212 F.3d 398, 404 (8th Cir. 2000) (recognizing
“traditional rule that mistakes of law do not constitute excusable neglect”); Advanced Estimating
Sys., Inc. v. Riney, 130 F.3d 996, 998 (11th Cir. 1997) (“[A] lawyer’s misunderstanding of clear
law cannot constitute excusable neglect. If it could, almost every appellant’s lawyer would plead
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his own inability to understand the law when he fails to comply with a deadline.”).
Therefore, the Bankruptcy Court did not err in denying the Motion to Extend. As a
result, Appellant’s appeal of the Bankruptcy Court’s March 11, 2014 Order dismissing the
adversary proceeding remains untimely, and this Court lacks subject matter jurisdiction over the
appeal. See Veltman, 93 F.3d at 520 (“In general, failure to file a timely notice of appeal from a
bankruptcy court’s order deprives the district court of jurisdiction to review that order.”).
IV. CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Appellant Premiere One, Inc.’s
appeal is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: October 2, 2014.
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