Domazet v. Willoughby Supply Company, Inc.

Filing 6

SUMMARY ORDER - That Willoughby's 2 Motion to Dismiss the appeal as untimely is GRANTED. That Domazet's 1 notice of appeal is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 7/10/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
AMRA DOMAZET,
Appellant,

1:14-cv-1455
(GLS)

v.
WILLOUGHBY SUPPLY
COMPANY, INC.,
Appellee.
________________________________
SUMMARY ORDER
Appellant Amra Domazet has appealed from an order of the
Bankruptcy Court (Littlefield, J.), issued on November 14, 2014, which
denied her motion for reconsideration of Bankruptcy Court’s prior order
granting appellee Willoughby Supply Company, Inc.’s motion for summary
judgment. (Dkt. No. 1; Dkt. No. 1, Attach. 2 at 2; Dkt. No. 1, Attach. 3 at
5.) Pending is Willoughby’s motion to dismiss the appeal as untimely.
(Dkt. No. 2.) For the reasons that follow, the motion is granted.
Because the merits of the appeal are not at issue here, only a brief
recitation of the facts is necessary. On September 4, 2014, Bankruptcy
Court granted Willoughby’s motion for summary judgment in an underlying
adversary proceeding, finding that a particular debt owed by Domazet to

Willoughby was non-dischargeable pursuant to 11 U.S.C. §§ 523 and 727.
(Dkt. No. 1, Attach. 1.) Domazet moved for reconsideration of that order,
(Dkt. No. 2, Attach. 1 ¶ 10), and, on November 14, 2014, Bankruptcy Court
denied that motion, (id. ¶ 13; Dkt. No. 1, Attach. 2 at 2). On December 1,
2014, Domazet filed a notice of appeal with respect to Bankruptcy Court’s
November 14 order. (Dkt. No. 1 at 1.)
In its motion, Willoughby argues that Domazet’s notice of appeal is
untimely and must be dismissed. (Dkt. No. 2, Attach. 3 at 2-7.) In
response, Domazet argues that her notice of appeal is timely because
Friday, November 28, 2014—the day after Thanksgiving and the fourteenth
day after entry of the order appealed from—was a legal holiday, or,
alternatively, that the clerk’s office was inaccessible on that day, thus
extending her time to file a notice of appeal until the following Monday,
December 1. (Dkt. No. 3 at 4-5.) The court disagrees with Domazet.
District courts have jurisdiction to hear both interlocutory and final
appeals from orders of the bankruptcy court. See 28 U.S.C. § 158(a). The
Federal Rules of Bankruptcy Procedure provide the rules for taking an
appeal from a judgment, order, or decree of a bankruptcy judge. See Fed.
R. Bankr. P. 8001(a). Specifically, Rule 8003 provides that an appeal “may
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be taken only by filing a notice of appeal with the bankruptcy clerk within
the time allowed by Rule 8002.” Id. 8003(a)(1). Rule 8002, in turn,
requires that “a notice of appeal must be filed with the bankruptcy clerk
within [fourteen] days after entry of the judgment, order, or decree being
appealed.” Id. 8002(a)(1). “[T]he time limit contained in Rule 8002(a) is
jurisdictional, and . . . in the absence of a timely notice of appeal in the
district court, the district court is without jurisdiction to consider the appeal,
regardless of whether the appellant can demonstrate excusable neglect.”
In re Siemon, 421 F.3d 167, 169 (2d Cir. 2005) (internal quotation marks
omitted).
Under certain circumstances, the rules regarding the computation of
time provide for an extension of the last day to file. As relevant here, Rule
9006(a) provides that “if the last day [of a period to file] is a Saturday,
Sunday, or legal holiday, the period continues to run until the end of the
next day that is not a Saturday, Sunday, or legal holiday.” Fed. R. Bankr.
P. 9006(a)(1)(C). The Rules explicitly define “legal holiday” as including:
(A) the day set aside by statute for observing New Year’s Day,
Martin Luther King Jr.’s Birthday, Washington’s Birthday,
Memorial Day, Independence Day, Labor Day, Columbus Day,
Veterans’ Day, Thanksgiving Day, or Christmas Day;

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(B) any day declared a holiday by the President or Congress; and
(C) for periods that are measured after an event, any other day
declared a holiday by the state where the district court is located.
Id. 9006(a)(6). Additionally, “if the clerk’s office is inaccessible . . . on the
last day for filing under Rule 9006(a)(1), then the time for filing is extended
to the first accessible day that is not a Saturday, Sunday, or legal holiday.”
Id. 9006(a)(3)(A).
Here, Domazet concedes that her notice of appeal was not filed
within fourteen days of the order appealed from, and instead was filed “on
December 1, 2014, the first business day after November 28, 2014.” (Dkt.
No. 3, Attach. 1 ¶ 17.) She argues that, because the Chief Judge of the
United States Court of Appeals for the Second Circuit issued an order
closing that court on Friday, November 28, 2014, that day became “an
official holiday,” and therefore her time to file was necessarily extended
until Monday, December 1. (Id. ¶¶ 15-16; Dkt. No. 3 at 4.) Domazet’s
argument is based on a faulty factual premise. The order issued by the
Chief Judge of the Second Circuit states only that “[t]he Court will be
closed on Friday, November 28, 2014.” Court Order (Nov. 4, 2014),
http://www.ca2.uscourts.gov/docs/court_closing_11_28.pdf. On its face,

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that notice only applies to the Second Circuit and does not implicate either
this court or the Bankruptcy Court for this district, nor does the order
declare such date a legal holiday. Cf. Hart v. Sheahan, 396 F.3d 887, 890
(7th Cir. 2005) (“The closure order had come from the chief judge of the
district court, who of course is not the President and did not purport to be
declaring a legal holiday and anyway lacked the authority to do so.” (citing
Garcia-Velazquez v. Frito Lay Snacks Caribbean, 358 F.3d 6, 9 (1st Cir.
2004))). Domazet has not shown that any of the criteria set forth in Fed. R.
Bankr. P. 9006(a)(6) for designation of November 28 as a “legal holiday”
are present here, as there is no indication that it was declared such by the
President, Congress, or the State of New York. See N.Y. Gen. Constr.
Law §§ 24, 25-a (McKinney 2015) (providing an extension for performing
required acts when the last day falls on a Saturday, Sunday, or “public
holiday,” and listing Thanksgiving day, but not the day after Thanksgiving,
as a “public holiday”). Domazet has thus provided no compelling authority
for considering November 28, the day after Thanksgiving, as a “legal
holiday” pursuant to Fed. R. Bankr. P. 9006(a)(6).
Alternatively, premised on the assumption that the clerk’s office for
the Bankruptcy Court of this district was closed on November 28, 2014,
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Domazet contends that the clerk’s office was inaccessible on that date,
because “there was no [c]ourt employee available to process the Notice of
Appeal.” (Dkt. No. 3 at 4-5.) In response to this argument, Willoughby
contends that the clerk’s office was not inaccessible, as Domazet was able
to file her notice of appeal electronically, regardless of whether the clerk’s
office was physically open or closed. (Dkt. No. 2, Attach. 3 at 6-7; Dkt. No.
4 at 6-8.) The court agrees with Willoughby.
Although Fed. R. Bankr. P. 9006(a)(3) does not define
“[i]naccessibility,” this provision has traditionally been applied in instances
where the clerk’s office or “courthouse is physically inaccessible,” due to
“inclement weather or other physical situation[s that] prevent[ ] anyone
from filing documents.” In re: Buckskin Realty Inc, 525 B.R. 4, 11-12
(Bankr. E.D.N.Y. 2015). More recently, several courts have appeared
inclined to conclude that, given the advent of electronic case filing (ECF), a
clerk’s office is no longer “inaccessible” just because it may be physically
closed on a particular day. See, e.g., Westfield Ins. Co. v. Interline
Brands, Inc., Civil No. 12-6775, 2013 WL 1288194, at *5 (D.N.J. Mar. 25,
2013) (“Due to the electronic filing capabilities of the court, the
[d]efendants were able to file their Notice of Removal on October 31, 2012,
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on the electronic filing system (CM/ECF) despite the fact that the Clerk’s
Office was physically inaccessible on that date.”); Miller v. City of Ithaca,
No. 3:10-cv-597, 2012 WL 1589249, at *3 (N.D.N.Y. May 4, 2012) (“With
electronic filing, the Clerk’s office was accessible for purposes of filing
papers and [d]efendants could have filed their motion in a timely manner.”);
Shareef v. Donahoe, No. 3:11-cv-00615-W, 2012 WL 934125, at *2
(W.D.N.C. Mar. 20, 2012) (“[A]ttorneys are not affected by the early closing
of the Clerk’s office because they have the ability (and are required) to file
pleadings electronically and may do so until midnight of the filing
deadline.”); In re Wholesale Grocery Prods. Antitrust Litig., No.
09-MD-2090, 2011 WL 586413, at *1 (D. Minn. Feb. 8, 2011) (“January 17,
2011 was a holiday, but the Court’s electronic CM/ECF system was in
operation and therefore the Clerk’s Office was not ‘inaccessible’ as
contemplated by Rule 6 of the Federal Rules of Civil Procedure.”); In re:
Buckskin Realty Inc, 525 B.R. at 11 (noting “case law [which] suggests that
the advent of ECF has further restricted the meaning of inaccessibility,”
and finding that the clerk’s office was not inaccessible, in part because “the
[m]ovants [did] not allege a malfunction by the [c]ourt’s ECF system”);
McDow, Jr. v. Runkle (In re Runkle), 333 B.R. 734, 739 n.3 (Bankr. D. Md.
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2005) (“Filing by ECF ends the concept of the clerk’s office being
inaccessible on weekends and legal holidays. Under ECF, the clerk’s
office is always open for the reception of filings.”). But see, e.g., Hellman
v. Weisberg, 360 F. App’x 776, 777-78 (9th Cir. 2009) (stating that,
because “[t]he district court clerk’s office was closed on the day [a] notice
of appeal was originally due[,] . . . the office was ‘inaccessible’ within the
meaning of Federal Rule of Appellate Procedure 26(a)(3),” and specifying
that “[t]he availability of electronic filing does not change this result”).
Here, Domazet has offered nothing to demonstrate that this District’s
Bankruptcy Court or the bankruptcy clerk’s office was closed on November
28, 2014. However, even if it were physically closed, the court is not
persuaded that the clerk’s office was inaccessible for purposes of filing a
notice of appeal, given the availability of ECF and the lack of any evidence
or even allegation from Domazet that she attempted, and was unable, to
file electronically. This is particularly germane in light of the express
requirements in the applicable rules that all filings in Bankruptcy Court be
made electronically. Specifically, Fed. R. Bankr. P. 8001(c), which governs
appeals to the district court, states that “[a] document must be sent
electronically . . . unless” a pro se party is involved “or the court’s
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governing rules permit or require mailing or other means of delivery.” The
Local Bankruptcy Rules for the Northern District of New York contain a
similar requirement of electronic filing. See L.R. Bankr. N.D.N.Y. 50051(a). Lastly, Administrative Order No. 03-01, issued by the Bankruptcy
Court for this District, clearly states that “documents filed in all cases on or
after July 1, 2004 must be filed electronically.” Thus, whether the clerk’s
office was physically open or closed for business is of no moment here, as
Domazet was in any event required to file her notice of appeal
electronically. Further, as mentioned above, Domazet has not argued, for
example, that she attempted to file her notice of appeal electronically—as
she was required to do—but that the electronic filing system was not
properly functioning. See, e.g., In re Sands, 328 B.R. 614, 619 (Bankr.
N.D.N.Y. 2005) (explaining that “[i]f [a party]’s counsel could not submit a
petition because the CM/ECF system experienced technical difficulties,
counsel could submit proof that the problems at the clerk’s office prevented
the filing of the petition,” making it “incumbent on the [filing party] to show
that the clerk’s office was subject to a CM/ECF system failure”).
In sum, because Domazet has failed to establish that any exception
to the fourteen-day filing requirement applies here, her notice of appeal is
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untimely, and the court thus lacks jurisdiction to consider her appeal. See
Garvy v. Davis (In re Saint Vincent’s Catholic Med. Ctrs. of N.Y.), No. 14
Civ. 7370, 2015 WL 1379104, at *1 (S.D.N.Y. Mar. 26, 2015); Greenery
Rehab. Grp., Inc. v. Sabol, 841 F. Supp. 58, 61 (N.D.N.Y. 1993) (“Once
challenged, the burden of establishing subject matter jurisdiction rests on
the party asserting the jurisdiction.” (citing Thomson v. Gaskill, 315 U.S.
442, 446 (1942))). While the court recognizes the arguable inequity in the
decision reached here, it notes that the time limits set forth in the
Bankruptcy Rules for the filing of an appeal are jurisdictional in nature, and
thus do not invoke principles of equity.1 See In re Indu Craft, Inc., 749 F.3d
107, 114-15 (2d Cir. 2014) (holding that time limits prescribed by statute for
appeals to district courts acting as appellate courts over bankruptcy
matters are jurisdictional); In re Saint Vincent’s, 2015 WL 1379104, at *1
(“Federal district courts’ jurisdiction to hear bankruptcy appeals is
circumscribed by 28 U.S.C. § 158(c)(2), which provides that bankruptcy
appeals must be filed in the time provided by Rule 8002 of the Bankruptcy
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If Domazet had made a timely motion for an extension of time to file a late notice of
appeal, the court, in that situation, would have been permitted to consider whether a late filing
was justified by “excusable neglect.” Fed. R. Bankr. P. 8002(d)(1)(B). However, no such
motion was made here, and the court cannot construe Domazet’s bare notice of appeal as
seeking an extension of time in order to file a late notice of appeal. See In re Saint Vincent’s,
2015 WL 1379104, at *2.

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Rules.” (internal quotation marks and citation omitted)); see also United
States v. Locke, 471 U.S. 84, 101 (1985) (“Filing deadlines, like statutes of
limitations, necessarily operate harshly and arbitrarily with respect to
individuals who fall just on the other side of them, but if the concept of a
filing deadline is to have any content, the deadline must be enforced.”) For
these reasons, the court lacks jurisdiction to entertain Domazet’s untimely
notice of appeal.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Willoughby’s motion to dismiss the appeal as
untimely (Dkt. No. 2) is GRANTED; and it is further
ORDERED that Domazet’s notice of appeal (Dkt. No. 1) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
July 10, 2015
Albany, New York

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