United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH, UNITED STATES DISTRICT JUDGE
cause is before the Court on the Report and Recommendation to
the District Court (d/e 7) filed by United States Chief
Bankruptcy Judge Mary P. Gorman and the
Trustee/Appellee's Motion to Dismiss Appeal by Appellant
Ronald Grason Sr. (d/e 8) filed by John H. Germeraad, Chapter
13 Trustee. Because Appellant Ronald J. Grason's appeal
is untimely, the Motion to Dismiss is GRANTED. Alternatively,
the Court ACCEPTS Judge Gorman's Report and
Recommendation and dismisses the appeal for failure to pay
the filing fee.
19, 2017, the bankruptcy court dismissed Grason's Chapter
13 bankruptcy case because he had a pending Chapter 7 case
relating directly to the debts at issue in the Chapter 13
case. See Record on Appeal, Order at 6-9 (d/e 6).
Grason thereafter had 14 days to file his notice of appeal
with the bankruptcy clerk. See Fed. R. Bankr. P.
8002(a)(1). This period ended on August 2, 2017.
August 3, 2017, Grason filed in the bankruptcy court his
notice of appeal and a Motion to Proceed in Forma Pauperis.
On August 4, 2017, the bankruptcy court denied Grason's
Motion to Proceed In Forma Pauperis based on the
discrepancies between the income and expenses listed on his
case documents and those listed in his Motion to Proceed In
Forma Pauperis. Order at 2 (d/e 2). The bankruptcy court
granted Grason until August 18, 2017 to pay the $298 filing
fee. To date, Grason has not paid the filing fee.
also filed a “Notice of Appeal and Statement of
Election” that the bankruptcy court construed as a
request to have the appeal reviewed directly by the Seventh
Circuit. On August 4, 2017, the bankruptcy court denied
Grason's request to have the appeal reviewed directly by
the Seventh Circuit. Order at 2 (d/e 4). In the Order denying
the request to have the appeal reviewed directly by the
Seventh Circuit, the bankruptcy court noted that the notice
of appeal was filed one day late. Id. at 3.
August 21, 2017, Judge Gorman filed a Report and
Recommendation (d/e 7) pursuant to 28 U.S.C. §
157(c)(1). Judge Gorman recommended that the appeal
be dismissed for failure to pay the filing fee. On August 22,
2017, this Court issued a Text Order advising Grason that any
objections to the Report and Recommendation must be filed on
or before September 5, 2017. Grason did not file any
August 28, 2017, the Trustee filed a motion to dismiss the
appeal for lack of jurisdiction. On that same day, this Court
entered a Text Order advising Grason that, if he did not
respond to the motion, the motion would be granted, if
appropriate, and the case would be terminated. The Court
granted Grason up to and including September 14, 2017 to file
a response. No response was filed.
courts have jurisdiction to hear appeals from final
judgments, orders, and decrees of a bankruptcy court. 28
U.S.C. § 158(a). An appeal under § 158(a) is
“taken in the same manner as appeals in civil
proceedings are taken to the courts of appeals from the
district courts and in the time provided by Rule 8002 of the
Bankruptcy Rules.” 28 U.S.C. § 158(c)(2).
8002 of the Federal Rules of Bankruptcy Procedure provides
that, subject to exceptions not applicable in this case, a
notice of appeal must be filed with the bankruptcy clerk
within 14 days after entry of the judgment, order, or decree
being appealed. Fed.R.Bankr.P. 8002(a)(1); In re
Arbuckle, 988 F.2d 29, 31 (5th Cir. 1993) (finding that
the additional three days that are added to a prescribed
period under Federal Rule of Bankruptcy Procedure 9006(f)
apply only when the time period for filing begins running
from the date of service and does not apply when the time
period begins running from the date of entry, as is the case
for the time period for filing a notice of appeal); see
also In re Wigoda, 11 F. App'x 624, 625 (7th Cir.
2001) (citing Arbuckle and holding that the
additional three days do not apply to the time period for
filing a notice of appeal). The notice of appeal must be
accompanied by the prescribed fee. Fed.R.Bankr.P.
bankruptcy court may extend the time to file a notice of
appeal, subject to certain exceptions not applicable here.
Fed.R.Bankr.P. 8002(d)(1). The motion seeking an extension of
time must be filed within the time prescribed by Rule 8002 or
within 21 days after that time, if the party shows excusable
neglect. Fed.R.Bankr.P. 8002(d)(1)(A), (B).
case, the notice of appeal was due on August 2, 2017. Grason
did not file the notice of appeal until August 3, 2017. On
August 4, 2017, the bankruptcy court advised Grason that the
notice of appeal was untimely. Order at 3 (d/e 4). Grason
never sought an extension of time under Rule 8002, and the
time for doing so has since expired.
filing of the notice of appeal is jurisdictional. In re
Sobczak-Slomczewski, 826 F.3d 429, 432 (7th Cir. 2016)
(affirming the dismissal for lack of jurisdiction where the
notice of appeal was filed one day late). ...