Jones v. Morgan

Filing 4

ORDER DISMISSING APPEAL. CASE CLOSED. Signed by District Judge Debra M. Brown on 9/7/17. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
REBECCA JEAN JONES

APPELLANT

V.

NO. 4:16-CV-246-DMB

DOROTHY MORGAN

APPELLEE

ORDER DISMISSING APPEAL
This bankruptcy appeal is before the Court sua sponte for consideration of jurisdiction.
I
Relevant Procedural History
On November 3, 2015, Rebecca Jean Jones filed a notice of appeal seeking to appeal two
orders issued by United States Bankruptcy Judge Jason D. Woodard—an order granting relief
from an automatic stay, and an order denying reconsideration of the order lifting the stay. Jones
v. Morgan, No. 4:15-cv-176 (N.D. Miss. filed Dec. 7, 2015) (“Jones I”), at Doc. #1. On August
15, 2016, this Court entered a memorandum opinion and order dismissing Jones’ appeal for
failure to file a complete record.

Id. at Doc. #46.1

The order provided that “Jones may

supplement the record within thirty (30) days of the date of this order and … move for
reinstatement of the appeal.” Id. Jones did not move to reinstate her appeal and, on November
28, 2016, this Court entered a final judgment dismissing the appeal without prejudice. Id. at
Doc. #51.
On December 14, 2016, Jones filed this bankruptcy appeal seeking to appeal the same
two orders at issue in the dismissed appeal. Doc. #1. There has been no activity in this case

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A complete procedural history of the underlying bankruptcy proceedings may be found in the August 15, 2016,
memorandum opinion and order.

since the filing of the notice of appeal.
II
Jurisdiction
Pursuant to 28 U.S.C. § 158(a):
The district courts of the United States shall have jurisdiction to hear appeals
(1) from final judgments, orders, and decrees;
(2) from interlocutory orders and decrees issued under section 1121(d) of title 11
increasing or reducing the time periods referred to in section 1121 of such
title; and
(3) with leave of the court, from other interlocutory orders and decrees;
and, with leave of the court, from interlocutory orders and decrees, of bankruptcy
judges entered in cases and proceedings referred to the bankruptcy judges under
section 157 of this title.
“The failure to file a timely notice of appeal in a bankruptcy case deprives … the district court …
of jurisdiction.”

In re Dorsey, __ F.3d __, No. 16-31085, 2017 WL 3821248, at *1 (5th Cir.

Sep. 1, 2017).
As an initial matter, “an order granting relief from an automatic stay is a final and
appealable order.” In re Chunn, 106 F.3d 1239, 1241 (5th Cir. 1997). Pursuant to Bankruptcy
Rule 8002(a)(1),2 “a notice of appeal must be filed with the bankruptcy clerk within 14 days after
entry of the judgment, order, or decree being appealed.” If, however, a party files a motion to
alter or amend judgment under Bankruptcy Rule 9023 or for relief under Bankruptcy Rule 9024,
the time to file an appeal runs from the entry of the order disposing of the motion. Fed. R.
Bankr. P. 8002(b)(1)(B), (D).
As this Court explained in its order dismissing Jones’ first appeal, Jones’ time to file a
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“An appeal under subsection[] (a) ... shall be taken in the same manner as appeals in civil proceedings generally
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).

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notice of appeal of the two orders began to run on October 22, 2015, when the Bankruptcy Court
denied reconsideration of its order lifting the stay. She filed her first notice of appeal twelve
days later on November 3, 2015. After this Court entered a final judgment in her first appeal on
November 28, 2016, Jones waited sixteen days, until December 14, 2016, to file her second
notice of appeal. Accordingly, the second notice of appeal—the one at issue here—was filed
419 days after the fourteen-day period to appeal began to run on October 22, 2015. Even if
Jones was given the benefit of equitable tolling during the pendency of her initial appeal (391
days) and was afforded two three-day mailbox periods3 (one from October 22, 2015, and one
from November 28, 2016), her appeal would still be untimely by approximately eight days.
Therefore, this appeal must be dismissed for lack of jurisdiction. See In re Dorsey, 2017 WL
3821248, at *2 (where notice of appeal was untimely, “district court correctly determined that it
lacked jurisdiction”).
III
Conclusion
Because Jones’ notice of appeal [1] was filed outside the fourteen-day period to appeal,
this appeal is DISMISSED for lack of jurisdiction. A final judgment consistent with this
opinion will issue separately.
SO ORDERED, this 7th day of September, 2017.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

3

See Fed. R. Bankr. P. 9006(f) (providing additional three days after service by mail).

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