In Re: Nestor

Background

Peggy Nestor filed a Chapter 11 bankruptcy case in the Southern District of New York. Marianne Nestor, Peggy Nestor’s sister, became involved in those proceedings through her co-ownership of a property with Peggy. Marianne appealed an October 25, 2024 Bankruptcy Court decision by Judge Michael E. Wiles that held her in contempt and imposed civil sanctions.

Missed appeal requirement

Federal Rule of Bankruptcy Procedure 8009(a) required Marianne to file and serve a designation of the record items and a statement of the issues within 14 days after filing her notice of appeal. She filed those materials six days after the deadline. Magistrate Judge Sarah L. Cave issued an order requiring Marianne to show why the appeal should not be dismissed and gave her an opportunity to explain whether the delay resulted from excusable neglect. Marianne did not respond and did not request an extension.

Judge Cave later issued a Report and Recommendation recommending dismissal for failure to comply with the bankruptcy rules and Federal Rule of Civil Procedure 41(b). The recommendation gave the parties 14 days to file objections and warned that failing to object would waive further review. No objections or extension requests were filed.

District court’s review and ruling

Because no timely objections were filed, Judge Rearden reviewed the recommendation for clear error rather than conducting a fresh review of disputed issues. Clear error means an obvious mistake in the record that leaves the reviewing court firmly convinced that a mistake was made. Judge Rearden stated that the recommendation was well reasoned and supported by the facts and law, and found no clear error.

The court adopted the Report and Recommendation and dismissed the action with prejudice. It directed the clerk to close the case and mail a copy of the order to Marianne Nestor.