In Re: Bruce J Paswall

Background

Grant Paswall and Reid Paswall appealed a Bankruptcy Court order granting Mark S. Tulis’s objections to their claims. The District Court issued an order directing the appellants to show cause—meaning explain why the case should continue—because the appeal appeared untimely under 28 U.S.C. § 158(c)(2) and Federal Rule of Bankruptcy Procedure 8002(a), and because the appellants appeared not to have properly pursued the appeal under Rule 8003(a)(2).

The appellants responded with a letter docketed as a motion to bifurcate. They argued that the appeal was timely because a motion for reargument remained pending in the Bankruptcy Court. They stated that the Bankruptcy Court had heard the objection on May 13, 2022, entered the formal order on June 21, 2022, and received the notice of appeal on June 30, 2022.

Procedural requirements

Under Rule 8009, an appellant must file and serve a designation of the items to be included in the appellate record and a statement of the issues within the required period. The appellant must also order any needed transcript or file a certificate stating that no transcript is being ordered. The District Court stated that these filings had not been made and were untimely.

The court also explained that Rule 8003(a)(2) permits dismissal of a bankruptcy appeal when an appellant fails to take a required step. An untimely filing may sometimes be allowed for “excusable neglect,” meaning a legally acceptable reason for missing the deadline. The appellants did not attempt to show excusable neglect, request an extension, or otherwise explain their failure to comply for more than eight months.

Ruling

The District Court rejected the appellants’ claim that a reargument motion was still pending. The order being appealed expressly referred to the motion for rehearing and the response to it, so the court concluded that no such motion was pending when the notice of appeal was filed. The court also stated that the appellants’ theory about another appeal in the Second Circuit would not make their required filings timely.

Because the required filings had not been made, there was no appellate record for the District Court to review, and no briefs had been filed. The court therefore dismissed the appeal under Rule 8003(a)(2) and the authority discussed in the opinion. It also directed the Clerk to terminate the pending motion, docketed as Doc. 8, and close the case.