McGee v. Dinsmore

Filing 5

ORDER DISMISSING APPEAL signed by Judge J P Stadtmueller on 2/26/10. (cc: appellant, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ E D W A R D MCGEE, Appellant, v. S H E R R IE D. DINSMORE, Appellee. ____________________________________________ C a s e No. 09-CV-1107

ORDER
A p p e lla n t Edward McGee ("McGee") filed this appeal from an order entered b y United States Bankruptcy Judge Pamela Pepper on September 21, 2009. In the o rd e r, Judge Pepper granted Appellee Sherrie Dinsmore's ("Dinsmore") motion to d is m is s McGee's adversary action. Dinsmore had filed for bankruptcy in January 2 0 0 9 and McGee sought to have two civil judgments against Dinsmore excepted fro m discharge. McGee filed a notice of appeal of Judge Pepper's dismissal of his a c tio n more than one month later, on October 30, 2009. McGee's appeal was u n tim e ly filed under the applicable bankruptcy rule and this court lacks jurisdiction o ve r it. Therefore, the court must dismiss McGee's action. A n appeal from a judgment, order, or decree of a bankruptcy judge to a district c o u rt must be taken within the time limits provided by Federal Bankruptcy Rule of P ro c e d u r e 8002. Under this rule, an appeal from a bankruptcy court decision must b e filed within 14 days of the date of entry of the order at issue. Fed. R. Bank. P. 8 0 0 2 (a ). An appeal which is filed more than 14 days after entry of the order cannot b e reviewed by the district court because the court lacks jurisdiction over the matter.

S e e In re Maurice, 69 F.3d 830, 832 (7th Cir. 1995) (stating that a late-filed notice o f appeal puts the challenged bankruptcy order outside a district judge's power to re vie w ); see also Stelpflug v. Fed. Lank Bank of St. Paul, 790 F.2d 47, 49 (7th Cir. 1 9 8 6 ) (stating that the requirement of a timely notice of appeal from an order of the b a n k ru p tc y court is "mandatory and jurisdictional."). In his appellate brief, McGee outlines the financial ruin he has suffered b e c a u s e of Dinsmore's actions and notes that state courts granted judgment in his fa vo r on two small claims actions. Unfortunately, these circumstances do not

c h a n g e the fact that his notice of appeal was untimely filed. There is no question th a t McGee filed his notice more than 14 days after entry of Judge Pepper's d is m is s a l order. The order was entered on September 22, 2009, during a hearing a t which McGee was present. (See McGee v. Dinsmore, Case No. 09-02169-pp, D k # 1 6 ). However, McGee did not file his notice of appeal until 38 days later, on O c to b e r 30, 2009. Consequently, the court lacks jurisdiction over the untimely a p p e a l and must dismiss the action. Accordingly, IT IS ORDERED that this appeal be and the same is hereby DISMISSED. T h e clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 26th day of February, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge 2