Lowe v. Arbouw

Filing 7

MEMORANDUM OPINION. Signed by District Judge Roderick C. Young on 09/24/2024. (Kski, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
IN RE: KIMBERLY LOWE,
aka Kimberly Lowe Arbouw,

MISC. CASE NO. 23-00301-KLP

KIMBERLY LOWE,
Appellant,
v.

CIVIL ACTION NO. 3:23CV766 (RCY)

ROBERT ARBOUW,
Appellee.
MEMORANDUM OPINION
This matter is before the Court on Appellee Robert Arbouw’s Motion to Dismiss Appeal
as Untimely (ECF No. 5), concerning the above-captioned bankruptcy appeal initiated by
Appellant Kimberly Lowe. Appellant has responded to the Motion to Dismiss, and the matter is
ripe for review. For the reasons set forth below, the matter shall be dismissed.
I. PROCEDURAL HISTORY
On March 31, 2023, the United States Bankruptcy Court entered an order directing the
opening of a Miscellaneous Proceeding against Kimberly Lowe. App. 1, ECF No. 3-1.1 The
Miscellaneous Proceeding centered on allegations raised by Appellee Robert Arbouw in a Motion
to Show Cause in a now-expunged bankruptcy case, that Appellant filed a fraudulent bankruptcy
petition in Appellee’s name. See App. 8 (Bankr. Ct. Mem. Order Damages). The Bankruptcy
Court set the matter for a hearing on May 31, 2023. See generally App. 1–3 (Docket, In re:

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The Court utilizes the record transmitted by the Bankruptcy Court, ECF No. 3-1, and the pagination applied
by the CM/ECF system to the same.

Kimberly Lowe). Appellant received notice of the hearing and acknowledged her awareness of the
same by way of various filings. App. 1–3. The Bankruptcy Court thereafter continued the hearing
to July 12, 2023. Appellant again demonstrated awareness of the hearing by way of various filings
“objecting” to the proceedings. App. 4–5. On July 12, 2023, the Bankruptcy Court conducted a
hearing and took the matters under advisement. App. 5. Appellant did not appear at the hearing.
App. 9.
On September 29, 2023, the Bankruptcy Court issued a Memorandum Order on Damages,
assessing sanctions against Appellant in connection with the conduct underlying the Miscellaneous
Proceeding. App. 5; App. 8–17 (Bankr. Ct. Mem. Order Damages).
On October 17, 2023, Appellant filed a pro se Notice of Appeal regarding the
Memorandum Order on Damages. ECF No. 1. She filed her Appellant’s Brief on December 11,
2023, ECF No. 4, and Appellee responded with the instant Motion to Dismiss, ECF No. 5,
accompanied by a notice consistent with the requirements of Local Rule 7(K) and Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). Appellant filed her Response on January 9, 2024. ECF
No. 6.
II. DISCUSSION
Appellee argues that the Court lacks jurisdiction to hear this appeal due to Appellant’s
failure to file within time pursuant to Fed. R. Bankr, P. 8002. The Court agrees.
Appeals from a Bankruptcy Court must be brought in the District Court in the time
provided by Rule 8002 of the Bankruptcy Rules. 28 U.S.C. § 158(c)(2). Fed. R. Bankr. P.
8002(a)(1) allows for 14 days for the Notice of Appeal to be filed after entry of the bankruptcy
order. Failing to timely file a notice of appeal divests the district court of jurisdiction. See Fed.
R. Bankr. P. 8002; Bowles v. Russell, 551 U.S. 205, 214 (2007) (“[T]he timely filing of a notice
of appeal in a civil case is a jurisdictional requirement.”); Chien v. Commonwealth Biotechs., Inc.,
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484 B.R. 659, 663 (E.D. Va. 2012) (If a prospective appellant fails to timely file his or her notice
of appeal, “the District Court is stripped of its jurisdiction to hear the appeal.”).
Here, the Bankruptcy Court issued its Memorandum Order granting sanctions against
Appellant on September 29, 2023. Appellant appealed this order to the District Court on October
17, 2023. On its face, this appeal was therefore untimely by four days: Friday, October 13, 2023
would have been fourteen days after the Bankruptcy Court entered its Memorandum Order.
Appellant has never sought an extension to date. Instead, in response to the Motion to
Dismiss, Appellant merely re-raises the same jurisdictional arguments that she endeavored to raise
before the Bankruptcy Court and that appear to be the backbone to the present appeal. See
generally Response, ECF No. 6. Appellant does make a passing reference to the fact that, since
she “was NOT a party to the case, Ms. Lowe was not allowed to receive email updates and
everything went slowly through the US Postal Service.” Id. at 2. Putting aside the fact that
Appellant most certainly was a party to the underlying Miscellaneous Proceeding, and further
putting aside the fact that the Eastern District of Virginia allows for pro se e-noticing, this
argument is nevertheless unavailing. The Federal Rules of Civil Procedure contemplate any
potential disadvantage incurred by a party relying on service through mail and so allow for a
cushion of three days:
(d) Additional Time After Certain Kinds of Service. When a party may or must act
within a specified time after being served and service is made under Rule 5(b)(2)(C)
(mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are
added after the period would otherwise expire under Rule 6(a).
Fed. R. Civ. P. 6(d). Thus, even “extend[ing] all permissible leniency in the application of [the]
procedural requirements of litigation” to Appellant as a pro se litigant, In re Steever, No, 95-1039,
1995 U.S. Dist. LEXIS 14825, at *8 (D.N J. Sept. 27, 1995), and granting her the benefit of Rule
6(d)’s three-day extension, the Court still finds that her appeal was untimely, as it was filed four
days after the expiration of the appeal window.
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Appellant failed to file a request for an extension within the initial appeal period and did
not attempt to make a showing of excusable neglect to avail herself of an extension within the
twenty-one day period provided in Rule 8002(d)(2)(B). Lack of action by Appellant in this manner
deprives this Court of jurisdiction over her appeal. Chien, 484 B.R. at 663.
III. CONCLUSION
Because Appellant filed to timely file her notice of appeal, this Court must dismiss her
appeal for lack of jurisdiction.
An appropriate Order will issue.

s//
/s/
Roderick C. Young
oung
ngg
United States District Judge
Date: September 24, 2024
Richmond, Virginia

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