United States District Court, D. Connecticut
RULING AND ORDER
R. Underhill United States District Judge
John Kwong has moved for reconsideration of my April 24, 2017
ruling dismissing his bankruptcy appeal for lack of subject
matter jurisdiction. I grant Kwong's motion but, after
considering his arguments, I deny his requested relief and
adhere to my earlier ruling.
Standard of Review
standard for granting motions for reconsideration is strict;
motions for reconsideration “will generally be denied
unless the moving party can point to controlling decisions or
data that the court overlooked-matters, in other words, that
might reasonably be expected to alter the conclusion reached
by the court.” Shrader v. CSX Transp., 70 F.3d
255, 257 (2d Cir. 1995). Motions for reconsideration will not
be granted where the party merely seeks to relitigate an
issue that has already been decided. Id. The three
major grounds for granting a motion for reconsideration in
the Second Circuit are: (1) an intervening change of
controlling law, (2) the availability of new evidence, or (3)
the need to correct a clear error or prevent manifest
injustice. Virgin Atl. Airways v. Nat'l Mediation
Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citing 18
Charles A. Wright, et al., Federal Practice &
Procedure § 4478).
John Kwong filed a voluntary petition for bankruptcy pursuant
to Chapter 13 of the Bankruptcy Code on March 9, 2016.
See Bankr. Doc. No. 1. On December 16, 2016, the
Chapter 13 Standing Trustee, Molly T. Whiton (“the
Trustee”), filed a motion to dismiss Kwong's case,
asserting that he “failed to prosecute th[e] case
and/or propose a confirmable plan.” Bankr. Doc. No. 31.
After notice, briefing, and a hearing, Judge Manning
dismissed Kwong's case without prejudice on February 21,
2017. See Bankr. Doc. No. 51.
March 3, 2017, Kwong filed a pro se motion for an
extension of the automatic stay imposed pursuant to 11 U.S.C.
§ 362, while he appealed Judge Manning's order of
dismissal to this court. See Bankr. Doc. No. 53
(“Pursuant to Federal Rule of Bankruptcy Procedure
§ 8007, the Petitioner . . . respectfully request[s]
relief of an extension of the Automatic Stay . . . pending
appeal of his case to the U.S. District Court from an Order
Granting Trustee's Motion [t]o Dismiss Chapter 13 Case .
. . .”). On March 10, 2017, Judge Manning denied
Kwong's motion, reasoning that, under 11 U.S.C. §
362(c)(2)(B), “[t]he automatic stay is no longer in
place upon dismissal of [the] case.” Bankr. Doc. No.
56, at 1 (citing 11 U.S.C. § 362(c)(2)(B) (“[T]he
stay . . . continues until . . . the time the case is
dismissed . . . .”)).
then filed a notice of appeal of the dismissal order and a
motion for leave to proceed in forma
pauperis on March 24, 2017. Bankr. Doc. No. 58;
Doc. No. 1. Kwong's appeal was filed more than “14
days after entry of the judgment, order, or decree being
appealed.” See Fed. R. Bankr. P. 8002(a)(1).
As a result, Kwong's appeal was untimely, and I lacked
jurisdiction to hear the case. See In re Indu Craft,
749 F.3d 107, 115 (2d Cir. 2014) (“[T]he time limit
prescribed by Rule 8002(a) is jurisdictional, ” and
“in the absence of a timely notice of appeal . . ., the
district court is without jurisdiction to consider the
appeal.”). Therefore, on April 24, 2017, I issued a
ruling and order dismissing Kwong's appeal for lack of
subject matter jurisdiction. See Doc. No. 9. Kwong
now asks that I reconsider that ruling.
motion for reconsideration, Kwong essentially argues that
Judge Manning and I should have construed Kwong's motion
to stay pending appeal to be a motion for relief from a
judgment or order. Unlike a motion for a stay pending appeal
(made pursuant to Bankruptcy Rule 8007(a)(1)(A)), a motion
for relief from a judgment or order (made pursuant to
Bankruptcy Rule 9024) does toll the time to appeal
until “the entry of the order disposing of the . . .
motion.” Fed.R.Bankr.P. 8002(b)(1). Kwong argues that
the motion he filed on March 3, 2017-though captioned a
“motion for extension of automatic stay pending
appeal”-was really a motion for Judge Manning to
reconsider her order dismissing his case. See Doc.
No. 14. Because that motion was made within 14 days of Judge
Manning's order, Kwong contends that his time to appeal
only began to run when Judge Manning denied the motion for
reconsideration on March 10, 2017. See Bankr. Doc.
No. 56. Kwong's notice of appeal was filed exactly 14
days after that, see Doc. No. 1, and so, Kwong
argues, his appeal was timely and jurisdiction exists in this
disagree. For several reasons, Kwong's argument cannot
“reasonably be expected to alter the conclusion reached
by the court.” See Shrader, 70 F.3d at 257.
First, on its face, Kwong's March 3, 2017 motion belies
his attempt at recharacterization. Kwong entitled the
document “motion for extension of automatic stay
pending appeal.” See Bankr. Doc. No. 53, at 1.
In the body of the motion, he “request[ed] . . . an
extension of the Automatic Stay . . . pending appeal of his
case to the U.S. District Court.” Id. Indeed,
in the very first words of the motion, Kwong specifically
stated that the motion was made “[p]ursuant to . . .
[Bankruptcy Rule] 8007” (“Stay Pending
Appeal”). Id.; Fed.R.Bankr.P. 8007. Thus,
Kwong's motion sought a stay pending appeal, not
reconsideration pursuant to Bankruptcy Rule 9024.
even if “a mischaracterization of a [Bankruptcy Rule]
9024 motion by [a] [pro se] Debtor is not
controlling, ” In re Hill, 305 B.R. 100,
108-09 (Bankr. M.D. Fla. 2003), nothing in Kwong's March
3, 2017 motion suggests that it could fairly be read as a
motion for reconsideration. Kwong's motion did not
“ask the bankruptcy court to alter its findings,
” see In re Hoxie, 370 B.R. 288, 291 (S.D.
Cal. 2006), to “alter or amend [the] judgment, ”
see In re Shields, 150 B.R. 259, 260 (D. Colo.
1993), or to “vacate [its] order of dismissal of
[Kwong's] bankruptcy case.” See In re
Hill, 305 B.R. at 108. To the contrary, the motion
announced that Kwong intended immediately to “appeal .
. . his case to the U.S. District Court.” Bankr. Doc.
No. 53, at 1. Likewise, Judge Manning evidently did not think
that Kwong's motion sought reconsideration of her order
dismissing the case, because she promptly denied the motion
without reconsidering the merits of her earlier ruling.
See Bankr. Doc. No. 56, at 1.
asserts that he intended to move for reconsideration, and
that, had he filed a separate motion pursuant to Bankruptcy
Rule 9024, “he would have filed a needless redundancy
of two motions seeking the same relief . . . which, upon
appeal to the district court, could have potentially expanded
into multi-litigated motions and respective notices of
appeal.” Doc. No. 14, at 8-9. To illustrate the point,
Kwong includes in his present motion for reconsideration a
“[h]ypothetical” motion pursuant to Bankruptcy
Rule 9024, which, he argues, would have “transform[ed]
his cause . . . into an exponentially bifurcating expansion
of corollary civil actions being simultaneously litigated
within the contested jurisdictions of possibly no [fewer]
than four different federal courts.” Id. at 7,
9. Despite Kwong's concerns, however, “[t]he power
of the federal courts to extend the time limits on the
invocation of appellate jurisdiction is severely
circumscribed, ” and I have no “equitable powers
to alter appellate timelines” simply to “better
streamline the appellate process.” See United
States ex rel. McAllan v. City of New York, 248 F.3d 48,
53 (2d Cir. 2001) (per curiam); Mendes, Junior Int'l
Co. v. Banco do Brasil, S.A., 215 F.3d 306, 312 (2d Cir.
2000) (discussing Fed. R. App. P. 4); Doc. No. 14, at 10.
Kwong's sense of efficiency as a litigant cannot
“confer jurisdiction on this [c]ourt” in the face
of “limits enacted by Congress.” In re Indu
Craft, 749 F.3d at 113; McAllan, 248 F.3d at
53; see also Bowles v. Russell, 551 U.S. 205, 213
(2007) (“Because Congress decides whether federal
courts can hear cases at all, it can also . . . prohibit
federal courts from adjudicating an otherwise legitimate
class of cases after a certain period has elapsed from final
might intend to invoke the doctrine of “unique
circumstances, ” which renders a “notice of
appeal timely . . . ‘where a party has performed an act
which, if properly done, would postpone the deadline for
filing his appeal and has received specific assurance by a
judicial officer that this act has been properly
done.'” See Lichtenberg v. Besicorp Grp.,
204 F.3d 397, 402 (2d Cir. 2000) (quoting Osterneck v.
Ernst & Whinney, 489 U.S. 169, 179 (1989)). But
Kwong does not claim (or even imply) that Judge Manning gave
him “assurance[s]” that he had properly filed a
motion pursuant to Bankruptcy Rule 9024. Id. The
“doctrine of unique circumstances has no application
[w]here, ” as here, “[a] party has simply
erroneously interpreted the rules with regard to the time for
appeal.” Id. at 403 (other brackets and
quotation marks omitted). Moreover, “there is no
indication in the record that [Kwong] shared with . . . [the]
judge [his] present vision of [the Bankruptcy Rule 8007]
motion as one made also under [Bankruptcy Rule 9024] or as
one that would . . . extend [his] time to appeal.”
See Id. As a result, “there is no basis for
inferring” that Judge Manning ...