In Re: Peggy Nestor
- Rearden
- 1:24-cv-07109
- U.S. District Court · Southern District of New York
- 5
In Re: Peggy Nestor: Judge Rearden dismissed Marianne Nestor’s appeal without prejudice for lack of jurisdiction because it was filed late.
Marianne Nestor’s appeal was dismissed without prejudice because the district court found that it lacked jurisdiction over the untimely bankruptcy appeal. Albert Togut’s request for dismissal with prejudice was rejected.
What happened
In Re: Peggy Nestor concerns Marianne Nestor’s appeal from a bankruptcy-court order requiring her to comply with an earlier order and a trustee’s subpoena. The order involved bankruptcy proceedings filed by her sister, Peggy Nestor.
A magistrate judge recommended dismissing the appeal without prejudice because Marianne Nestor filed her notice of appeal more than 14 days after the bankruptcy-court order, leaving the district court without jurisdiction. Albert Togut objected only to dismissal without prejudice, arguing that the appeal should instead be dismissed with prejudice.
Judge Rearden overruled that objection, adopted the recommendation in full, and dismissed Marianne Nestor’s appeal without prejudice. The court explained that when it lacks subject-matter jurisdiction, it cannot dismiss the case with prejudice.
The detailed version
- In Re: Peggy Nestor · No. 1:24-cv-07109
- Rearden
- July 25, 2025
Background
Marianne Nestor, representing herself, appealed an order of the United States Bankruptcy Court for the Southern District of New York. The challenged order, issued on July 26, 2024, required her to comply with an earlier order and with a subpoena issued by the Chapter 11 trustee. The underlying bankruptcy case was filed by Marianne Nestor’s sister, Peggy Nestor, and Marianne Nestor became involved through her co-ownership of a property with her sister.
The district court referred the appeal to Magistrate Judge Sarah L. Cave. Judge Cave ordered Marianne Nestor to explain why the appeal should not be dismissed for lack of subject-matter jurisdiction. Federal Rule of Bankruptcy Procedure 8002(a) requires a notice of appeal to be filed within 14 days after the bankruptcy court enters the order being appealed. Judge Cave found that Marianne Nestor had not filed her notice within that period and concluded that her response did not address the order being appealed.
Report and Recommendation and Objection
Judge Cave recommended that the appeal be dismissed without prejudice because the district court lacked jurisdiction. Albert Togut objected only to the recommendation that the dismissal be without prejudice. He argued that the appeal should be dismissed with prejudice because, in his view, Marianne Nestor and the debtor had filed untimely appeals from nearly every bankruptcy-court order entered after Togut became trustee. He also argued that the appeals impeded administration of the bankruptcy estate, increased costs, and served no useful purpose.
Court’s Analysis
The district court reviewed the objection de novo, meaning it independently considered the challenged issue. The court relied on the rule that a court lacking subject-matter jurisdiction also lacks power to dismiss with prejudice. It also cited authority treating the bankruptcy appeal deadline as jurisdictional, so that a district court lacks jurisdiction when a notice of appeal is not timely filed.
Ruling
Judge Rearden overruled Togut’s objection and adopted Judge Cave’s Report and Recommendation in its entirety. The court dismissed Marianne Nestor’s appeal without prejudice. The clerk was directed to close the case and mail a copy of the order to Marianne Nestor.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.