Bosman v. Glod
SUMMARY ORDER - That the Clerk direct the Bankruptcy Court Clerk to complete the record promptly pursuant to N.D.N.Y.L.R. 76.2(a) and Fed. R. Bankr. P. 8010(b). Signed by Judge Gary L. Sharpe on 12/17/2015. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MATTHEW J. GLOD,
Before the court is a sua sponte raised question of appellate
jurisdiction over this bankruptcy appeal. By text only order, the court
directed the parties to brief the issue of whether the notice of appeal was
timely filed. (Dkt. No. 2.)1 For the reasons that follow, appellant A.J.
Bosman’s notice of appeal was timely filed.
This appeal arises from an adversary proceeding commenced by
Bosman, a creditor, to determine the dischargeability of appellee Matthew
Glod’s debt. (Bankr. Dkt. No. 1.) In December 2014, a two-day bench trial
was held before Bankruptcy Court. (Bankr. Dkt. Nos. 32, 34.) On April 1,
References to the entries on this court’s docket will be preceded by “Dkt. No.”
References to the entries on the bankruptcy court docket in the Adversary Proceeding Case
No. 13-80020 will be preceded by “Bankr. Dkt. No.”
2015, Bankruptcy Court issued a Memorandum, Decision and Order
(MDO) finding in favor of Glod and dismissing Bosman’s complaint.
(Bankr. Dkt. No. 40.)
Believing that the time to appeal had expired, Bosman filed a motion
to extend her time to appeal. (Bankr. Dkt. No. 42.) After a hearing,
Bankruptcy Court denied Bosman’s motion. (Bankr. Dkt. No. 50.)
Bankruptcy Court later docketed the following entry: “Disposition of
Adversary 6:13-ap-80020 Judgment For Defendant.” (Aug. 6, 2015 Bankr.
Dkt. Entry.) Thereafter, on August 20, 2015, Bosman filed a notice of
appeal seeking appellate review from this court. (Bankr. Dkt. No. 51.)
Pursuant to Local Rule 76.2(a), the Clerk of Bankruptcy Court issued a
certification of non-compliance for untimeliness, which was transmitted to
this court. (Dkt. No. 1 at 83.) As noted above, this court directed the
parties to brief the issue of the timeliness of the appeal. (Dkt. No. 2.)
Bosman argues that her appeal is timely because Bankruptcy Court
never entered judgment, and she filed her notice of appeal pursuant to the
150-day provision in Rule 58(c) of the Federal Rules of Civil Procedure.
(Dkt. No. 3 at 2-3.) Alternatively, Bosman contends that the August 6,
2015 docket entry is a judgment and she timely filed her notice of appeal
within fourteen days of the entry. (Id. at 3-4.) In opposition, Glod asserts
Bosman’s appeal is untimely because it was not filed within fourteen days
of Bankruptcy Court’s April 1, 2015 MDO as required by Rule 8002 of the
Federal Rules of Bankruptcy Procedure. (Dkt. No. 4 at 2.) Glod argues
that Rule 58 should not apply because Rule 58 “is limited to [judgments]”
whereas Rule 8002 “addresses judgments, orders, or decrees.” (Id.) Even
if Rule 58 applies, Glod maintains that the appeal is still untimely because
the decretal order in Bankruptcy Court’s MDO satisfies the separate
judgment requirement. (Id.) The court agrees with Bosman.
A party to a bankruptcy proceeding may appeal as of right to a
district court “from final judgments, orders, and decrees.” 28 U.S.C.
§ 158(a)(1). An appealing party must file a notice of appeal within fourteen
days “after entry of the judgment, order, or decree being appealed.” Fed.
R. Bankr. P. 8002(a)(1). An untimely appeal of a bankruptcy judgment
deprives a district court of appellate jurisdiction. See Statek Corp. v. Dev.
Specialists, Inc. (In re Coudert Bros. LLP), 673 F.3d 180, 185 (2d Cir.
2012). Accordingly, the court has an “independent obligation to consider
the presence or absence of subject matter jurisdiction sua sponte.” Id. at
185 n.6 (internal quotation marks and citation omitted). Glod maintains
that Bosman’s appeal is untimely under Rule 8002(a)(1), but he fails to
appreciate that Bankruptcy Court’s MDO does not constitute a judgment.
With certain exceptions not relevant here, a judgment must be set
out in a separate document. See Fed. R. Civ. P. 58(a); see also Fed. R.
Bankr. P. 7058 (incorporating Fed. R. Civ. P. 58 into adversary
proceedings). “This separate document must be separate from any judicial
memorandum or opinion and must be labeled a judgment.” Árzuga v.
Quiros, 781 F.3d 29, 33 (2d Cir. 2015) (internal quotation marks and
citation omitted). Although formal, “[t]hese mechanistic
requirements . . . are necessary to the goal of promoting clarity[, as
l]itigants must be able to determine when a judgment is a judgment for the
purpose of appeal.” Cooper v. Town of East Hampton, 83 F.3d 31, 34 (2d
Cir. 1996). As such, the separate document rule “avoid[s] confusion as to
when the clock starts for the purpose of an appeal.” Id. at 33.
Glod’s argument that the MDO is a judgment is plainly meritless.
(Dkt. No. 4 at 2.) It is not labeled as such and contains Bankruptcy Court’s
reasoning and legal opinion. See Árzuga, 781 F.3d at 33. Furthermore, a
decretal order included with an opinion or memorandum will not transform
a decision into a judgment. See Redhead v. Conference of Seventh-Day
Adventists, 360 F. App’x 232, 233 (2d Cir. 2010); RR Vill. Ass’n, Inc. v.
Denver Sewer Corp., 826 F.2d 1197, 1201 (2d Cir. 1987) (holding that an
order included with an opinion or memorandum does not satisfy the
separate document requirement). Accordingly, Bankruptcy Court’s MDO is
not a judgment under Rule 58.
Bosman’s alternative argument that the August 6, 2015 docket entry
is a judgment, however, is a closer question. See Redhead, 360 F. App’x
at 234 (holding that a docket entry labeled “ENTRY OF JUDGMENT AS A
MATTER OF LAW” constituted a judgment). Ultimately, whether the
August 6, 2015 docket entry triggered the appeal clock is of no moment
because Bosman’s appeal would be timely in either event.
A judgment is entered once “it is set out in a separate document” or
“150 days have run from the entry in the civil docket.” Fed R. Civ. P.
58(c)(2); see Árzuga, 781 F.3d at 33. In an adversary proceeding, “if a
separate order is not entered as required by the rule, the deadline to
appeal is 164 days from the date a decision that would otherwise be final is
entered.” Church Joint Venture, L.P. v. Blasingame (In re Blasingame),
525 B.R. 675, 681 (B.A.P. 6th Cir. 2015).2 The 164-day deadline “is
calculated by adding the 150 days in Rule 58 to the 14[-]day appeal period
provided by Bankruptcy Rule 8002(a).” Id.
Glod’s argument that Rule 58 should not apply to this adversary
proceeding is not supported. (Dkt. No. 4 at 2.) Glod cites no authority for
this proposition. (Id.) Moreover, Rule 7058 of the Federal Rules of
Bankruptcy Procedure expressly makes Rule 58 applicable in adversary
proceedings. See In re Blasingame, 525 B.R. at 678-79 (noting that Rule
58, incorporated by Rule 7058 in adversary proceedings, “sets forth the
requirement for triggering the starting date for determining the time allotted
for an appeal”). Therefore, the requirements of Rule 58 are properly
applied to this proceeding.
Here, no judgment was entered in a separate document. Thus,
under Rule 58(c), the fourteen-day period to appeal did not begin to run
until 150 days after the dismissal of the adversary proceeding, on April 1,
Although the Second Circuit has not yet applied the 150-day provision of Rule 58(c)
to bankruptcy proceedings, bankruptcy courts in this circuit acknowledge that Rule 58
generally applies to adversary proceedings. See, e.g., Messer v. Peykar Int’l Co., Inc. (In re
Fine Diamonds, LLC), 501 B.R. 230, 231 n.2 (Bankr. S.D.N.Y. 2013); Marina Dist. Dev. Co.
LLC v. Chong Park (In re Chong Park), 492 B.R. 668, 691 (Bankr. S.D.N.Y. 2013).
Additionally, the Second Circuit has applied the 150-day rule in other contexts. See, e.g.,
Árzuaga, 781 F.3d at 33; Mir v. Shah, 569 F. App’x 48, 49 n.1 (2d Cir. 2014). Accordingly, the
court is persuaded that the 150-day rule applies in this case.
2015. (Bankr. Dkt. No. 40.) Therefore, taking into consideration that the
164th day fell on a Saturday, the notice of appeal had to be filed on or
before September 14, 2015. Bosman filed her notice of appeal well before
the deadline, on August 20, 2015, (Bankr. Dkt. No. 51), and, therefore,
timely appealed. Assuming without deciding that the August 6, 2015
docket entry constitutes a judgment, Bosman’s appeal is still timely
because her notice of appeal was filed within fourteen days of the entry.
See Fed. R. Bankr. P. 8002(a)(1). Accordingly, this court has jurisdiction
over the appeal, and the Clerk shall notify the Bankruptcy Court Clerk to
complete the record promptly in accordance with Rule 8010(b) of the
Federal Rules of Bankruptcy Procedure.
It is hereby
ORDERED that the Clerk direct the Bankruptcy Court Clerk to
complete the record promptly pursuant to N.D.N.Y. L.R. 76.2(a) and Fed.
R. Bankr. P. 8010(b); and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
IT IS SO ORDERED.
December 17, 2015
Albany, New York
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