Schwab Industries, Inc. v. Huntington National Bank et al

Filing 15

Memorandum Opinion: Before the Court are motions to dismiss filed separately by appellees Hahn, Loeser & Parks, LLP, Lawrence E. Oscar, and Andrew Krause (Doc. No. #5 ) and by appellee Huntington National Bank (Doc. No. #7 .) Appellant filed a combined brief in opposition. (Doc. No. #11 .) The appellees filed their separate reply briefs. (Doc. Nos. #12 and #13 , respectively.) Because the notice of appeal was not timely filed, this Court lacks jurisdiction. Therefore, the two motions to dismiss are granted. Judge Sara Lioi on 6/24/2016. (S,He)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SCHWAB INDUSTRIES, INC.,

APPELLANT,
vs.
HUNTINGTON NATIONAL BANK, et al.,

APPELLEES.

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CASE NO. 5:15-cv-2098
(Adv. No. 14-6024)
JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court are motions to dismiss filed separately by appellees Hahn, Loeser &
Parks, LLP, Lawrence E. Oscar, and Andrew Krause (Doc. No. 5) and by appellee Huntington
National Bank (Doc. No. 7.) Appellant filed a combined brief in opposition. (Doc. No. 11.) The
appellees filed their separate reply briefs. (Doc. Nos. 12 and 13, respectively.) For the reasons
discussed herein, the motions to dismiss are granted.
I. DISCUSSION
The parties here have set forth some of the underlying factual and procedural
background, and appellant has briefed the underlying legal issues.1 However, little, if any, of that
is relevant to the sole dispositive argument raised in both motions to dismiss: that this Court
lacks jurisdiction to review the appealed orders of the bankruptcy court because the notice of
appeal was not timely filed. This Court need only discuss that single issue.
On October 7, 2015, appellant Schwab Industries, Inc. (who was the debtor in a Chapter
11 proceeding and the plaintiff in the adversary proceeding from which this appeal arises), filed
1

Interestingly, appellant ignores defendants’ arguments relating to the timeliness of the appeal and, instead, goes
straight to the merits, arguing that the bankruptcy court was constitutionally and statutorily prohibited from entering
a final judgment. Even if that were so (and the Court has no opinion on that) the arguments cannot be addressed
unless this Court has jurisdiction.

its notice of appeal to this Court from two orders of the bankruptcy court, the first dated October
27, 2014 and the second dated September 21, 2015. For purposes of a timeliness analysis, only
the second order is relevant.2
Fed. R. Bankr. P. 8002(a) provides: “Except as provided in subdivisions (b) and (c), a
notice of appeal must be filed with the bankruptcy clerk within 14 days after entry of the
judgment, order, or decree being appealed.” Subdivision (b) deals with the effect on this 14-day
period of the filing of certain motions in the bankruptcy court: to amend or make additional
findings, to alter or amend a judgment, for a new trial, or for relief from a judgment or order. 3 A
review of the bankruptcy court docket reveals that no such motion was filed. Therefore, to be
timely under the rule, and applying Fed. R. Bankr. P. 9006(a) for computing time, 4 the notice of
appeal was due on October 5, 2015. It was filed on October 7, 2015.
With some exceptions, “the bankruptcy court may extend the time to file a notice of
appeal upon a party’s motion[.]” Fed. R. Bankr. P. 8002(d)(1). Here, appellant filed no motion
with the bankruptcy court (or with this Court) seeking an extension of time.
Even if the Court were to construe this as an interlocutory appeal, which appellant
appears to advocate,5 this Court would still be without jurisdiction to consider the appeal because
Fed. R. Bankr. P. 8004(a)(1) requires that a notice of appeal of an interlocutory order must be
filed within the same 14-day period prescribed for the notice of appeal of a final order.
2

Appellant previously attempted to appeal from the October 27, 2014 order. (See Case Nos. 5:14-cv-2578 and 5:14cv-2586.) This attempt was turned away by U.S. District Judge John R. Adams, who concluded that the order was
interlocutory and not ripe for appeal, and that there was no basis for permitting an interlocutory appeal.
3

Subdivision (c) addresses the so-called “mailbox rule” that applies to cases and appeals filed by incarcerated
persons. It is inapplicable here.
4

Rule 9006(a) requires exclusion of the day of the triggering event, counting every calendar day, and including the
last day of the period unless it is a Saturday, Sunday, or legal holiday, in which event the period runs to the next day.
Fed. R. Civ. P. 6(a) provides the very same.
5

A motion for leave to file an interlocutory appeal accompanies appellant’s notice of appeal. (Doc. No. 1-3.)

2

“Cases interpreting Rule 8002 hold that the rule shall be strictly construed and that
timely filing [of a notice of appeal] is a jurisdictional requirement.” In re HML II, Inc., 234 B.R.
67, 73 (6th Cir. BAP 1999) (internal quotation marks and citations omitted), aff’d 215 F.3d 1326,
2000 WL 659140 (6th Cir. May 11, 2000) (Table, text in WESTLAW); see also Suhar v. Burns (In
re Burns), 322 F.3d 421, 429-30 (6th Cir. 2003) (failure to comply with the time requirement, or
to timely seek an extension, deprives the appellate court of jurisdiction).
II. CONCLUSION
Because the notice of appeal was not timely filed, this Court lacks jurisdiction. Therefore,
the two motions to dismiss (Doc. Nos. 5 and 7) are granted.
IT IS SO ORDERED.
Dated: June 24, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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