United States District Court, N.D. Texas, Dallas Division
In Re BRIAN P. MIN, DEBTOR
BRIAN MIN, Appellee. ALPHA OMEGA CHL INC., Appellant,
MEMORANDUM OPINION AND ORDER
the Court in this bankruptcy appeal is Appellant Alpha Omega
CHL, Inc.'s (Alpha Omega) motion to extend the deadline
to file its appellant's brief-a motion that Alpha Omega
filed after the deadline to file its appellant's brief
elapsed. The Court DENIES Alpha Omega's motion and
DISMISSES this appeal.
Omega filed its notice of appeal in this case on August 11,
2017. Doc. 1-1, Am. Notice of Appeal, 1-2. Subsequently, on
October 6, 2017, the Bankruptcy Clerk transmitted the record
on appeal to this Court. Doc. 2, Notice. At that point, the
record was electronically available on the Court's
electronic filing system's website. Id. On
December 1, 2017, having received no appellant's brief,
the Court ordered the parties to show cause why it should not
dismiss Alpha Omega's appeal. Doc. 3, Order to Show
Cause. Alpha Omega's counsel responded that although she
had been monitoring the appeal, she did not notice that the
Bankruptcy Clerk transmitted the record on appeal on October
6, 2017 because she was in the midst of a multiday trial.
Doc. 4, Response. Alpha Omega now contends that the Court
should not dismiss its appeal but instead give Alpha Omega
until January 5 to file its appellant's brief.
Id. Brian Min, the debtor and appellee, opposes
Alpha Omega's motion to extend and submitted briefing
explaining why. Doc. 9, Objection. Alpha Omega replied. Doc.
11, Reply. Alpha Omega's opposed motion to extend
is thus ripe for review.
Rule of Bankruptcy Procedure 8018 sets the briefing schedule
for bankruptcy appeals and imposes penalties for failure to
adhere to the briefing schedule. An appellant in a bankruptcy
appeal “must serve and file a brief within 30 days
after the docketing of notice that the record has been
transmitted or is available electronically.”
Fed.R.Bankr.P. 8018(a)(1). If an appellant fails timely to
file a brief, a district court may, after giving notice,
dismiss the appeal. Fed.R.Bankr.P. 8018(a)(4).
missing a deadline does not always spell certain doom for the
tardy party. Federal Rule of Bankruptcy Procedure 9006(b)(1)
when an act is required or allowed to be done at or within a
specified period by these rules . . . the court for cause
shown may at any time in its discretion . . . on motion made
after the expiration of the specified period permit the act
to be done where the failure to act was the result of
Fed. R. Bankr. P. 9006(b)(1). Although no rule or statute
defines “excusable neglect, ” the Supreme Court
has weighed in. Whether neglect is excusable is an equitable
determination in which courts must consider “relevant
circumstances surrounding the party's omission.”
Pioneer Inv. Servs. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 395 (1993). The
factors courts must consider include “the danger of
prejudice to the debtor, the length of the delay and its
potential impact on judicial proceedings, the reason for the
delay, including whether it was within the reasonable control
of the movant, and whether the movant acted in good
faith.” Id. Although excusable neglect
“is not limited strictly to omissions caused by
circumstances beyond the control of the movant, ”
“inadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute
‘excusable' neglect.” Id. at 392.
The Supreme Court has made clear also that “clients
must be held accountable for the acts and omissions of their
attorneys.” Id. at 396. Expanding on
Pioneer, the Fifth Circuit has said that “if
counsel's behavior so thoroughly falls below a certain
threshold, a district court's determination regarding
excusable neglect will not be disturbed if the court has
considered the moving party's proffered evidence.”
Silvercreek Mgmt, Inc. v. Banc of Am. Secs., LLC,
534 F.3d 469, 472-73 (5th Cir. 2008).
Alpha Omega's attorney's behavior falls clearly below
“a certain threshold.” See Id. at
472-73. The Federal Rules of Bankruptcy Procedure are clear
that an appellant has thirty days after the record on appeal
becomes electronically available to file an appellant's
brief. Fed.R.Bankr.P. 8018(a)(1). And the October 6, 2017
docket entry, available on the Court's electronic filing
system, clearly states that the bankruptcy clerk transmitted
the record on appeal on October 6, and the entry contains
obvious links to the record. Doc. 2, Notice. Anyone actually
keeping track of the docket in this case would have noticed
that the record was transmitted and became electronically
available on October 6, 2017.
such is not the case here. Thirty days after the record was
transmitted, Alpha Omega had not submitted an appellant's
brief. Not until prompted by the Court on December 1, 2017,
nearly a month after the date on which Alpha Omega should
have filed its brief, did Alpha Omega ask to extend the
deadline. Doc. 4, Response. The only excuse Alpha Omega's
attorney offered was that she was in the middle of a trial on
October 6 and that the trial prevented her from noticing that
the record had become electronically available. Id.
Fifth Circuit affirmed a district court's denial of a
motion to extend on similar facts. In Silvercreek
Managment, a class-action plaintiff missed the deadline
to opt out of a class settlement and moved for an extension
of time to opt out. Silvercreek, 534 F.3d at 472.
The district court denied the plaintiff's motion.
Id. The Fifth Circuit affirmed because orders and
other documents on the “esl
website” put the plaintiff's counsel on notice
of the deadline. Id. at 473. The district court
acted within its discretion when it denied the
plaintiff's motion because “it considered [the
plaintiff's] proffered evidence and determined that
counsel's performance fell below the threshold required
for neglect to be excusable.” Id.
Alpha Omega's motion to extend in this case is proper for
the same reason. Considering the Pioneer factors and
evidence before the Court, the Court determines that Alpha
Omega's neglect was not excusable. Similarly to the
Silvercreek plaintiff, an electronic docket entry in
this case put Alpha Omega's attorney on notice of the
appellant-brief deadline. Thus, “the attorney's
performance fell so thoroughly below the threshold required
for her neglect to be excusable” that the Court denies
Alpha Omega's motion to extend. See Silvercreek,
534 F.3d at 472-73.
Omega's argument that Min would not be prejudiced by
allowing Alpha Omega to file its brief late fails. As long as
this appeal is pending, claims on Min's assets are
uncertain, which denies Min the “fresh start” a
debtor is supposed to achieve after going through bankruptcy
proceedings. See Local Loan Co. v. Hunt, 292 U.S.
234, 244 (1934) (“One of the primary purposes of the
Bankruptcy Act is to ‘relieve the honest debtor from
the weight of oppressive indebtedness, and permit him to
start afresh free from the obligations and responsibilities
consequent upon business misfortunes.'”) (quoting
Williams v. U.S. Fid. & Guar. Co., 236 U.S. 549,
554-55 (1915)). But even if Min were not prejudiced, the
Fifth Circuit has rejected the argument that demonstrating
lack of prejudice to the nonmovant always makes ...