United States District Court, D. Connecticut
RULING DISMISSING APPEAL FOR LACK OF
R. UNDERHILL, UNITED STATES DISTRICT JUDGE
Tamiko White has appealed an order of United States
Bankruptcy Judge James J. Tancredi dated August 29, 2017,
which dismissed her Chapter 7 bankruptcy petition. Under
Federal Rule of Bankruptcy Procedure 8002(a), White was
required to file a notice of appeal no later than August 15,
2017, two weeks after the entry of Judge Tancredi's
order. She did not file a notice of appeal until September
22, 2017. Timely filing of the notice is a jurisdictional
prerequisite. Hence, I lack subject matter jurisdiction, and
I dismiss White's appeal sua sponte.
Standard of Review
federal district court has jurisdiction to hear appeals of
“final judgments, orders, and decrees” of the
bankruptcy court for the same district pursuant to 28 U.S.C.
§ 158(a). When reviewing bankruptcy appeals, the
district court reviews conclusions of law de novo
and applies the clearly erroneous standard to findings of
fact. In re Ionosphere Clubs, 922 F.2d 984, 988 (2d
Cir. 1990). The district court may “affirm, modify, or
reverse a bankruptcy court's judgment, order, or decree[,
] or remand with instructions for further proceedings.”
In re Indicon, 499 B.R. 395, 400 (D. Conn. 2013)
(quoting former Federal Rule of Bankruptcy Procedure 8013).
appeal from a bankruptcy court's order, a party must file
“a notice of appeal . . . with the bankruptcy clerk
within 14 days after entry of the judgment, order, or decree
being appealed.” Fed.R.Bankr.P. 8002(a)(1).
“[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.” In re Indu
Craft, 749 F.3d 107, 115 (2d Cir. 2014) (quoting In
re Siemon, 421 F.3d 167, 169 (2d Cir. 2005) (per
curiam)). As the party seeking to invoke the court's
jurisdiction, the appellant bears the burden to establish
that jurisdiction. Thompson v. Cnty. of Franklin, 15
F.3d 245, 249 (2d Cir. 1994) (citing Warth v.
Seldin, 422 U.S. 490, 518 (1975)). Because
“jurisdiction goes to the heart of a federal
court's power, ” I am “obligat[ed] to
consider the presence or absence of subject matter
jurisdiction sua sponte.” In re Tronox,
Inc., ___ F.3d ___, ___, 2017 WL 1403001, at *20 (2d
Cir. 2017) (internal quotation marks omitted).
Tamiko White filed a voluntary petition for bankruptcy
pursuant to Chapter 7 of the Bankruptcy Code on August 11,
2017. See Bankr. Doc. No. 1. On August 17, 2017, the
court filed a deficiency notice and notice of dismissal of
case for failure to cure deficiency. Bankr. Doc. No. 7. Judge
Tancredi dismissed the case without prejudice on August 29,
2017. See Bankr. Doc. No. 11. On September 22, 2017,
White appealed Judge Tancredi's order of dismissal to
this court. See Bankr. Doc. No. 13; Doc. No. 1.
Rule of Bankruptcy Procedure 8002(a) provides that a party
seeking to appeal from a bankruptcy court's order must
file “a notice of appeal . . . with the bankruptcy
clerk within 14 days after entry of the judgment, order, or
decree being appealed.” Fed.R.Bankr.P. 8002(a)(1). The
14-day period includes Saturdays, Sundays, and legal
holidays, except that “if the last day is a Saturday,
Sunday, or legal holiday, the period continues to run until
the end of the next day that is not a Saturday, Sunday, or
legal holiday.” Fed.R.Bankr.P. 9006(a)(1). In the
present case, the order of dismissal was entered August 29,
2017. White was required to file a notice of appeal by
September 12, 2017, but she did not do so until September 22,
2017. See Doc. No. 1. Therefore, I lack jurisdiction
to hear her appeal. In re Indu Craft, 749 F.3d at
Second Circuit repeatedly has held that “the time limit
contained in Rule 8002(a) is jurisdictional.” In re
Coudert Bros. LLP, 673 F.3d 180, 185 (2d Cir. 2012)
(quoting In re Siemon, 421 F.3d at 169); see
also, e.g., In re Indu Craft, 749 F.3d at 115;
In re Harris, 464 F.3d 263, 269-70 (2d Cir. 2006)
(“[W]here the debtor does not file a timely notice of
appeal . . . the court has no choice but to dismiss the
case.”). As the Second Circuit has noted, 28 U.S.C.
§ 158-the statute that empowers district courts to hear
appeals from bankruptcy courts- explicitly provides that
appeals “shall be taken . . . in the time provided by
Rule 8002.” In re Indu Craft, 749 F.3d at
114-15 (quoting 28 U.S.C. § 158(c)(2)). “Section
158(c)(2) . . . determin[es] jurisdiction by incorporating
the time limits prescribed in Rule 8002(a), ”
id. at 115 (quoting In re Latture, 605 F.3d
830, 837 (10th Cir. 2010)), and, in consequence,
“[f]ailure to file a timely notice of appeal . . .
deprives the district court of jurisdiction to review the
bankruptcy court's order.” In re Universal
Minerals, 755 F.2d 309, 312 (2d Cir. 1985).
are several means to extend the 14-day period for appeal, but
none helps White here. First, “[i]f a party timely
files in the bankruptcy court any of” four specified
motions, then “the time to file an appeal runs . . .
from the entry of the order disposing of the last such
remaining motion.” Fed.R.Bankr.P. 8002(b)(1). Those
motions are (i) “to amend or make additional findings
under Rule 7052, ” (ii) “to alter or amend the
judgment under Rule 9023, ” (iii) “or a new trial
under Rule 9023, ” or (iv) “for relief under Rule
9024.” Id. White did not file any of those
motions in the bankruptcy court. Thus, White's belated
appeal is not rendered timely by Rule 8002(b)(1).
“the bankruptcy court may extend the time to file a
notice of appeal upon a party's motion that is filed (A)
within the time prescribed [i.e., 14 days] . . .; or (B)
within 21 days after that time, if the party shows excusable
neglect.” Fed.R.Bankr.P. 8002(d)(1). White has neither
filed such a motion nor made any showing of “excusable
neglect.” See Id. Furthermore, White filed
a notice of appeal of the dismissal order on September 22,
2017, 10 days after the time prescribed.
“[Rule] 8002(a) is jurisdictional, even for pro
se litigants, ” Chaturvedi v.
O'Connell, 335 F. App'x 145, 146 (2d Cir. 2009)
(summary order) (citing In re Siemon, 421 F.3d at
169), and courts in this circuit have held that even a
one-day delay in filing the notice of appeal is enough to
deprive the court of jurisdiction. See, e.g., In
re Residential Capital, 519 B.R. 606, 610 (S.D.N.Y.
2014) (pro se bankruptcy appeal dismissed for lack
of jurisdiction when filed one day late); Surabian v.
Picard, 2014 WL 917091, at *1 (S.D.N.Y. Mar. 7, 2014)
(two days late); Chaturvedi v. O'Connell, 2008
WL 2276690, at *2 (S.D.N.Y. June 2, 2008) (one day late),
aff'd, 335 F. App'x 145. Here, White filed a
notice of appeal of the dismissal order on September 22,
2017, ten days after the expiration of the 14-day period in
which she could file an appeal. Therefore, I lack
jurisdiction to hear his case, and the appeal must be