In Re: Jerry Smith
- Philip Halpern
- 7:23-cv-06513
- U.S. District Court · Southern District of New York
- 4
In re Jerry Smith: Judge Halpern dismissed the untimely bankruptcy appeal because missing notice did not extend the filing deadline.
Jerry Smith, who filed a self-represented appeal from a bankruptcy-court order; the appeal was dismissed as untimely, and the court denied permission to proceed without paying filing fees for any appeal from this ruling.
What happened
In re Jerry Smith concerned Jerry Smith’s appeal from a bankruptcy-court order dismissing his adversary complaint. He filed the appeal after the 14-day deadline, arguing that he did not receive notice of the order until later.
The court ruled that the appeal deadline began when the order was entered, not when Smith received notice. Because the appeal was late, the court lacked authority to consider it, and the request to extend the deadline was denied.
Judge Philip M. Halpern dismissed the appeal, directed the Clerk to close the case, and denied permission to proceed without paying filing fees if Smith appealed this ruling, certifying that such an appeal would not be taken in good faith.
The detailed version
- In Re: Jerry Smith · No. 7:23-cv-06513
- Philip Halpern
- Sept. 27, 2023
Background
Jerry Smith, appearing without a lawyer, appealed to the district court from a May 24, 2023 bankruptcy-court order dismissing his adversary complaint. He filed the notice of appeal on July 14, 2023. The district court directed him to explain why the appeal should not be dismissed as untimely under 28 U.S.C. § 158(c)(2) and Bankruptcy Rule 8002(a).
Smith stated that he did not learn of the order’s entry until July 4, 2023, when a clerk at the White Plains bankruptcy court gave him a copy. He argued that the lack of earlier notice provided good cause for his late appeal.
Court’s Analysis
Bankruptcy Rule 8002(a) requires a notice of appeal to be filed within 14 days after the entry of the order being appealed. Because the bankruptcy-court order was entered on May 24, 2023, June 7, 2023, was the filing deadline. Smith’s July 14 notice was therefore untimely.
The court explained that this deadline is jurisdictional, meaning the district court lacks authority to hear an appeal that does not meet it. Smith’s status as a self-represented litigant did not excuse compliance. The court also held that the bankruptcy clerk’s failure to promptly notify Smith did not pause or extend the appeal period. Bankruptcy Rule 9022(a) expressly provides that lack of notice of an order’s entry does not affect the time to appeal, and the court stated that parties must monitor the docket.
Smith also appeared to request an extension under Bankruptcy Rule 8002(d). The court denied that request because the rule’s timing requirements were not met. The court further stated that, even if those timing requirements had been met, the failure of a third party to inform a party that a judgment had been entered would not establish excusable neglect.
Disposition
The court dismissed the appeal because it lacked jurisdiction to consider it and could not enlarge the time for filing the notice of appeal. It requested that the Clerk close the case. If Smith elected to appeal this Opinion and Order without paying filing fees, the court denied that status and certified that any such appeal would not be taken in good faith.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.