In re: Gregory Collins Perry et al
MEMORANDUM OPINION AND ORDER: that the MOTION of Gregory Perry and Amy Lee Perry for Re-Hearing Pursuant to Bankruptcy Rule 8015 be DENIED. The Court remands this case back to the Bankruptcy Court for disposition as contemplated herein. Signed by Judge Irene C. Berger on 4/23/2013. (cc: attys; USBC, any unrepresented party) (cds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
IN RE: GREGORY COLLINS PERRY
and AMY LEE PERRY
GREGORY COLLINS PERRY
and AMY LEE PERRY,
CIVIL ACTION NO. 5:12-cv-00781
STEVE E. SEARS
and DIANE B. SEARS,
IN RE: GREGORY COLLINS PERRY
and AMY LEE PERRY
STEVE E. SEARS
and DIANE B. SEARS,
CIVIL ACTION NO. 5:12-cv-00917
GREGORY COLLINS PERRY
and AMY LEE PERRY,
MEMORANDUM OPINION AND ORDER1
The Court has reviewed the Motion of Gregory Perry and Amy Lee Perry for Re-Hearing
Pursuant to Bankruptcy Rule 8015 (“Mot. to Reconsider”) (Document 14) and the opposition
filed thereto (Document 16).2
Mr. Perry seeks reconsideration of this Court’s March 5, 2013
judgment reversing the Bankruptcy Court’s determination that Mr. Perry presented a sufficient
basis to demonstrate excusable neglect in his request for an extension of time in which to file his
notice of appeal. As a result of that ruling, this Court found that it lacked jurisdiction over Mr.
Perry’s appeal of the January 27, 2012 Order Awarding Damages as Non-Dischargeable Debt.3
The Court first observes that Mr. Perry timely filed a motion for reconsideration of this
Court’s March 5, 2013 judgment under Federal Rule of Bankruptcy Procedure 8015, which
Unless the district court or the bankruptcy appellate panel by local
rule or by court order otherwise provides, a motion for rehearing
may be filed within 14 days after entry of the judgment of the
district court or the bankruptcy appellate panel. If a timely motion
for rehearing is filed, the time for appeal to the court of appeals for
Unless otherwise notated, citations to the instant motion and related submissions are from In re: Gregory Collins
Perry, Civil Action No. 5:12-cv-0917.
The Court observes that this motion is captioned as a motion for rehearing for both Gregory and Amy Perry.
However, the Court observes that only Mr. Perry sought the extension of time to file an appeal in the Bankruptcy
Court and subsequently filed the notice of appeal of the Bankruptcy Court’s January 27, 2012 Order in this Court.
(See Record on Appeal, Order Granting Motion of Defendant / Debtor Gregory Collins Perry for Enlargement of
time for Within Which To File Notice of Appeal Pursuant to Bankruptcy Rule 8002(c)(2) (Document 2-18), Perry v.
Sears, Civil Action No. 5:12-cv-781 (S.D. W. Va. Mar. 5, 2013); Brief of Appellant Gregory Collins Perry
(Document 10) at 1, 8, Perry v. Sears, Civil Action No. 5:12-cv-781 (S.D. W. Va. Mar. 5, 2013)). As a result, the
Court’s March 5, 2013 Memorandum Opinion and Order addressed only the concern of Gregory Collins Perry.
Therefore, the only party that could seek relief as asserted in this motion is Mr. Perry, and the Court will, therefore,
consider the motion as having been filed by Mr. Perry only.
A more detailed version of the facts and procedural posture of this case can be found in the Court’s March 5,
2013 Memorandum Opinion and Order (Document 13).
all parties shall run from the entry of the order denying rehearing
or the entry of subsequent judgment.
Fed.R.Bankr.P. 8015. While this procedural rule permits a party the right to seek rehearing, it
does not explicitly provide the requirements for such a motion or the standard for a district
court’s consideration of the motion.4 As a result, some courts have applied the standard pertinent
to Rule 40(a)(2) of the Federal Rules of Appellate Procedure since the Advisory Committee
Notes to Rule 8015 explain that this bankruptcy procedural rule was adapted from that appellate
rule. See In re Fowler, 394 F.3d 1208, 1215 (9th Cir. 2005) (applying Rule 40(a)(2)); Baumhaft
v. McGuffin, Civil Action No.4:06-cv-3617-RBH, 2007 WL 3119611, at *1 (D.S.C. Oct. 22,
2007), affirmed, 283 F.App’x 120 (4th Cir. 2008) (discussing motion for rehearing standard).
Rule 40(a)(2) requires that a party seeking rehearing of an issue state with particularity each
point of law and / or fact that the party believes the court overlooked or misapprehended. This
rule is reflective of the purpose behind a Rule 8015 motion, which is to ensure that a party has
recourse to pinpoint to a district court that it has overlooked or misapprehended a fact or point of
law. Baumhaft, 2007 WL 3119611, at *1) (citing 10 Collier on Bankr. P. 8015.01 (15th ed. rev.
2004)). However, a “[p]etition for rehearing should not simply reargue the plaintiff’s case or
assert new grounds.” (Id.) (citation omitted.).
Turning to Mr. Perry’s motion, the Court observes that they have presented three
principal arguments. First, Mr. Perry argues that while this Court correctly looked to the test
pronounced in Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993) for
its determination of excusable neglect, this Court’s opinion “lean[ed] more toward the position of
The Fourth Circuit Court of Appeals has not designated a standard of review for such a motion.
the dissent in Pioneer.” (Mot. to Reconsider at 3) (contending that the majority opinion rejected
any attempts to “draw a line between ordinary negligence and partial ‘indifference’ to deadlines”
in favor of a more flexible approach to excusable neglect decisions.) Mr. Perry argues that three
of the four factors in the Pioneer test weighed in their favor and, therefore, this Court should
have found excusable neglect. Second, he re-iterates the argument that the reason their attorney
missed the appropriate deadlines in this case is similar to the error of the attorney in Pioneer. In
support of this argument Mr. Perry, for the first time, submits a photocopy of the “particular US
Bankruptcy Code and Rules . . . which were reviewed [by his attorney] in determining the initial
twenty-eight (28) day time period for filing a Motion under Federal Rule 9023.” (Id. at 2-3).
The gist of Mr. Perry’s argument remains that the version of the applicable procedural rules
utilized by their attorney which “intersperses Federal Rules among Bankruptcy Rules” led to
their attorney’s confusion about the applicable deadlines, and that excusable neglect should be
found in this case, like in Pioneer. Third, he acknowledge that this Court correctly concluded
that the “Motion of Gregory Collins Perry Pursuant to Rule 8002(c)(2) for Extension of Time in
Which to File Appeal” filed in the Bankruptcy Court on February 23, 2012, exceeded the
fourteen day period for such motion by thirteen days. (Id. at 4.) However, Mr. Perry asserts that
Rule 8002 of the Federal Rules of Bankruptcy “contemplates a request for authorization to file
appeal after the expiration of the fourteen (14) day time period.” (Id.) Mr. Perry argues that a
party may make such a request up to twenty-one days after the expiration of the fourteen day
time period for the filing of a notice of appeal. (Id. at 5.) In this vein, he claims that they had up
to March 3, 2012, to file a Rule 8002 motion. Consequently, Mr. Perry contends that this Court
“placed no weight upon the provision [of] Bankruptcy Rule 8002(c)(2) contemplating a window
of time in which to seek [an] extension of time to file a Notice of Appeal based upon the
equitable doctrine of Pioneer[.]” (Id.)
According to him, this portion of the rule should
“reasonably weigh in a manner supportive of the Bankruptcy Court’s Ruling below.” (Id. at 6.)
Mr. Perry also contends that the Court “gave no consideration” to the purpose of the abbreviated
time periods, the administration of Bankruptcy cases themselves and the rights of parties to seek
post trial relief.
In opposition, the Sears assert that Mr. Perry’s motion, like the arguments on appeal, does
not place the appropriate level of emphasis on the reason for the delay (counsel’s misreading of
the Bankruptcy Rules), that the Court presented a full analysis of the Pioneer factors and found
that the procedural rules cited to by Mr. Perry were not ambiguous, and that this Court correctly
found that the Bankruptcy Court erred in finding that Mr. Perry presented a sufficient basis to
demonstrate excusable neglect. (See Memorandum in Opposition to Motion of Gregory Perry
and Amy Lee Perry for Re-Hearing (Document 16) at 2-3).
The Court has considered Mr. Perry’s contentions and finds that while this Court
acknowledges that it erred in finding that Mr. Perry had until February 17, 2012, to seek an
extension of time to file his appeal, this error is without substance to the disposition of the
Court’s previous determination that Mr. Perry failed to demonstrate excusable neglect warranting
him an extension of time in which to file his notice of appeal. As Mr. Perry concedes, the
relevant Bankruptcy Court decision was filed on January 27, 2012, and the Motion of Gregory
Collins Perry Pursuant to Rule 8002(c)(2) for Extension of Time in Which to File Appeal was
“filed on February 23, 2012, which said date exceeded the fourteen (14) days from the entry of
the Bankruptcy Court’s [O]rder . . . by thirteen [(13)] days”. It is incumbent upon the movant,
Mr. Perry, to demonstrate excusable neglect for seeking an extension of time to appeal after the
expiration of the fourteen day period. The test for such demonstration was pronounced in
Pioneer, and finally the Court’s March 5, 2013 Memorandum Opinion and Order contained a
Pioneer analysis. Therefore, any finding about the maximum time in which Mr. Perry had to
seek an extension of time to file a notice of appeal beyond the initial fourteen-day period
provided for by Rule 8002 of the Federal Rules of Bankruptcy Procedure was not germane to the
Court’s central ruling. This is so because of the Court’s further consideration of whether
excusable neglect, as that term is defined by the applicable law, was demonstrated. Therefore,
accepting Mr. Perry’s argument that he had until March 3, 2012, to file a motion seeking an
extension of time to file a notice of appeal, the Court finds that the substantive basis of its
decision remains unchanged, given the failure to show excusable neglect. (See Memorandum
Opinion and Order (Document 13) at 15) (“[E]ven if Mr. Perry could demonstrate a timely filed
motion for an extension of time, he has failed to demonstrate excusable neglect. Indeed, even if
he had, the Fourth Circuit Court of Appeals has instructed that the mere establishment of
excusable neglect does not entitle a party to relief from the deadline. The decision still rests with
the court.”) (citation omitted).
On appeal, Mr. Perry had ample opportunity to fully set forth arguments relevant to the
Pioneer factors and did so prior to the Court’s decision. Therefore, any further argument relative
to those factors now is not necessary. However, this Court finds it necessary to address Mr.
Perry’s assertion that this Court’s ruling leans toward the Pioneer dissent. This argument is
wholly without merit. This Court did not employ a rigid examination of the Pioneer factors or
perform an analysis reminiscent of the dissent in Pioneer. Instead, the Court embarked upon an
equitable determination by considering all of the relevant circumstances relative to the movant’s
omission in its application of the Pioneer test. Relevant to Mr. Perry’s argument for rehearing,
this Court recognized, as the Fourth Circuit Court of Appeals has instructed, that excusable
neglect is not “easily demonstrated, nor was it intended to be” and that “[t]he most important of
the factors identified in Pioneer for determining whether ‘neglect’ is ‘excusable’ is the third—
the reason for the failure to [timely] file.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d
530, 534 (4th Cir.1996). As a result, the Court considered the reason for Mr. Perry’s delay in
meeting the applicable deadlines. As this Court previously found, Mr. Perry’s failure to act in a
timely manner amounted to either a misreading or ignorance of the rule. In either respect, the
reason for the failure to timely file a motion to amend judgment or notice of appeal was a
mistake of law within the movant’s control. Upon consideration of all four factors, the Court
concluded that Mr. Perry had not demonstrated excusable neglect. Mr. Perry has not presented
this Court with any argument or evidence that warrants a finding that this Court overlooked or
misapprehended pertinent facts or law as it relates to the Pioneer factors. Instead, Mr. Perry has
asserted an argument, generally stated, that the Court should have found excusable neglect
because the factors were three to one in his favor. This argument is not consistent with the
applicable law discussed above. See Sherman v. Quinn, 668 F.3d 421, 426-27 (7th Cir. 2012)
(finding that excusable neglect was not shown for counsel’s failure to timely file notice of appeal
even though the length of the delay was minimal, no real prejudice was alleged and counsel had
not acted in bad faith.); see also In re Alabama Protein Recycling, LLC, 210 F.App’x 876, 878
(11th Cir. 2006) (finding that district court did not abuse its discretion in finding that counsel’s
misreading of the Bankruptcy Rules and the Federal Rules of Civil Procedure was insufficient to
form the basis of excusable neglect) (unpublished per curiam decision).
Moreover, the Court observes that Mr. Perry has presented an exhibit that was not
presented to the Bankruptcy Court below or to this Court on appeal. Therefore, the Court
declines to review the same. However, even if the Court were to rely on the exhibit, the Court
finds that review of the particular page of the procedural rules reviewed by Mr. Perry’s attorney
does not lead to any finding that the rule as presented therein is ambiguous or “peculiar and
inconspicuous” as the proof of claim described in Pioneer. Consequently, to the extent that Mr.
Perry again asserts that his attorney’s error is akin to the error made in Pioneer, the Court finds
that this argument was previously raised and considered on appeal. Rule 8015 motions are not
permitted for re-argument of the same issues on appeal. Therefore, no further finding in this
regard is warranted.
Finally, the Court has considered the purpose of the deadlines in the Bankruptcy rules
and the orderly administration of such cases. In this case and on these facts, the Court finds that
the purpose of the relevant rule, Rule 8002, is not impaired by a court’s consideration of
Therefore, having considered Mr. Perry’s motion, the memoranda submitted in support
(Document 15) and in opposition (Document 16), the Court finds no reason to alter or amend its
previous ruling based on any misapprehension of fact or law. Likewise, the Court has not
overlooked any particular fact or law in its earlier consideration and ruling that Mr. Perry failed
to demonstrate excusable neglect. Consequently, Mr. Perry is not entitled to the relief he seeks.
As such, this Court does hereby ORDER that the Motion of Gregory Perry and Amy Lee Perry
for Re-Hearing Pursuant to Bankruptcy Rule 8015 (Document 14) be DENIED. The Court
remands this case back to the Bankruptcy Court for disposition as contemplated herein.
The Court DIRECTS the Clerk to send a copy of this Order to the Bankruptcy Court, to
counsel of record and to any unrepresented party.
April 23, 2013
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