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In re Coleman

June 2, 2010

IN RE ELLIOTTE PATRICK COLEMAN, DEBTOR.
ELLIOTTE PATRICK COLEMAN, APPELLANT,
v.
COUNTRYWIDE HOME LOANS, INC., APPELLEE.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Elliotte Patrick Coleman, proceeding pro se, appeals from an order of the bankruptcy court granting summary judgment to Countrywide Home Loans, Inc. Mr. Coleman filed a notice of appeal with the U.S. District Court on July 1, 2009. Mr. Coleman thereafter moved for recusal of the undersigned, which the Court denied, and Mr. Coleman now intends to appeal to the Supreme Court after the D.C. Circuit denied his appeal. To date, Mr. Coleman has yet to file a brief or any papers which speak to the merits of the instant matter. Countrywide Home Loans, Inc. ("Countrywide") has twice moved to dismiss the case for lack of jurisdiction and for failure to timely file a brief. Upon consideration of the motions and the entire record, the Court will grant the motion to dismiss.

I. FACTS

On May 11, 2009, the United States Bankruptcy Court for the District of Columbia granted summary judgment to Countrywide in a proceeding below. See Coleman v. Countrywide Home Loans, Inc. (In re Coleman), Adv. Pro. No. 07-10022 (Bankr. D.D.C. May 11, 2009) [Dkt. # 54]. On June 2, 2009, Mr. Coleman asked for an extension of time to file a notice of appeal. See Id. [Dkt. # 59]. Although his motion for an extension of time was opposed, Mr. Coleman filed a notice of appeal with the U.S. District Court for the District of Columbia on July 1, 2009. See Id. [Dkt. # 62]. On July 15, 2009, the Bankruptcy Court denied the motion for an extension of time pursuant to Federal Rule of Bankruptcy Procedure 8001. See Id. (Mem. Op. & Order) [Dkt. ## 68, 69]. The Bankruptcy Court noted that Mr. Coleman had until May 21, 2009 to file a timely notice of appeal pursuant to Fed. R. Bankr. P. 8002(a)*fn1 . Pursuant to Fed. R. Bankr. P. 8002(c)(2), the Bankruptcy Court could only entertain Mr. Coleman's untimely motion upon a showing of excusable neglect. See Id. [Dkt. # 68] at 2. The Bankruptcy Court determined that Mr. Coleman had failed to meet his burden of showing excusable neglect and denied his motion for an extension of time. See Id. at 10.

On August 21, 2009, the record on appeal was transmitted to the District Court. See Id. [Dkt. # 77]. After being assigned to this Court, Mr. Coleman filed motions on August 28, 2009 and September 9, 2009, seeking recusal of the undersigned. See [Dkt. ## 3, 4, 5]. On September 16, 2009, recusal was denied and Mr. Coleman was granted until September 30, 2009, to file a brief. See [Dkt. # 7]. On October 9, 2009, after Mr. Coleman failed to timely file a brief, the Court ordered him to show cause by October 23, 2009, why the Court should not dismiss the case pursuant to Fed. R. Bankr. P. 8002(a)(1), which requires that an appellant serve and file its brief within 15 days after entry of the appeal. See [Dkt. # 8]. On October 23, 2009, Mr. Coleman moved for an extension of time to show cause, advising the Court that he had filed a mandamus action in the Circuit Court of Appeals seeking recusal of the undersigned. See [Dkt. # 9]. Thereafter, on October 29, 2009, Countrywide moved to dismiss the appeal for lack of jurisdiction. See Mot. to Dismiss [Dkt. # 10]. On December 30, 2009, the Court of Appeals denied Mr. Coleman's petition for a writ of mandamus. See In re Coleman, No. 9-5390 (D.C. Cir. Dec. 30, 2009). In accordance with Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988), this Court then advised Mr. Coleman of his obligation to respond to Countrywide's motion to dismiss or face the prospect that the motion may be granted as conceded. See [Dkt. # 12]. The Court gave Mr. Coleman until January 19, 2010, to respond to the Court's order to show cause and to file a response to the motion to dismiss. See Id. Mr. Coleman was warned that failure to comply with the order could lead to dismissal of his appeal. See Id.

On January 19, 2010, Mr. Coleman petitioned the Circuit Court of Appeals to rehear his petition for a writ of mandamus. Mr. Coleman simultaneously filed a motion here seeking an extension of time to show cause and to respond to the motion to dismiss until after the Circuit rendered its decision. See [Dkt. # 13]. The Circuit denied his petition per curiam on April 8, 2010. See In re Coleman, No. 9-5390 (D.C. Cir. Apr. 30, 2009).

On April 22, 2010, Mr. Coleman moved, yet again, for an indefinite extension of time to show cause and to respond to the motion to dismiss so he could petition the Supreme Court in mandamus to recuse the undersigned. See [Dkt. # 14]. The Court entered a Minute Order on April 23, 2010, giving Mr. Coleman until May 14, 2010, to show cause and respond to Countrywide's motion to dismiss -- with a clear warning that no further extensions would be granted and that failure to file a response could lead to dismissal of the case. See Minute Entry Order, Apr. 23, 2010. Mr. Coleman has failed to file any response. Instead, Mr. Coleman filed a notice that he is seeking a stay of the case by the Circuit pending his petition to the Supreme Court to recuse the undersigned. See [Dkt. # 17].

II. LEGAL STANDARD

When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). While it is true that a court has an "obligation to construe pro se filings liberally, . . . ." United States v. Byfield, 391 F.3d 277, 281 (D.C. Cir. 2004),*fn2 clear indications of a lack of jurisdiction will lead to dismissal.

III. DISCUSSION

A. Federal Rule of Bankruptcy Procedure 8002

Federal Rule of Bankruptcy Procedure 8002 requires a party to file a notice of appeal within ten days after the judgment or order to be appealed from is entered. Fed. R. Bankr. P. 8002(a). A party may move the bankruptcy court for an extension of time to file a notice of appeal before the time has expired, or no later than twenty days after expiration of the time upon a showing of excusable neglect. Fed. R. Bankr. P. 8002(c)(2). Many circuit courts have found that a failure to timely file a notice of appeal is a jurisdictional defect barring appellate review. See, e.g., Siemon v. Emigrant Savs. Bank (In re Siemon), 421 F.3d 167 (2d Cir. 2005) (noting that untimely filings are a jurisdictional matter, even for pro se appellants); In re LBL Sports Ctr., Inc., 684 F.2d 410, 412 (6th Cir. 1982) (recognizing that time limit in predecessor rule 8002(a) was jurisdictional); Robinson v. Robinson (In re Robinson), 640 F.2d 737, 738 (5th Cir. 1981) (same); Ramsey v. Ramsey (In re Ramsey), 612 F.2d 1220, 1222 (9th Cir. 1980) (same); In re Herwit, 970 F.2d 709, 710 (10th Cir. 1992) (same). Furthermore, the advisory committee's note to rule 8002(a) clarified that the rule is an "adaptation" of rule 4(a) of the Federal Rules of Appellate Procedure. Fed. R. Bankr. P. 8002 advisory committee's note. It is established that the time limit prescribed by Fed. R. App. P. 4(a) is "mandatory and jurisdictional." Browder v. Dir., Dep't of Corr. of Ill., 434 U.S. 257, 264 (1978) (internal quotation marks omitted); see also Bowles v. Russell, 551 U.S. 205 (2007).

However, the Supreme Court has recently injected some doubt into whether Rule 8002 is jurisdictional in nature. In a string of cases, the Supreme Court has held that federal rules prescribing mandatory filing deadlines only deprive a court of jurisdiction where the deadline was statutorily created. If a deadline lacks a statutory foundation, but is born of the judiciary through the federal rules, then the rule is an inflexible claim-processing rule, which is obligatory if invoked, but forfeited by a failure to bring a timeliness objection. See Kontrick v. Ryan, 540 U.S. 443, 452-56 (2004) (holding that Fed. R. Bankr. P. 4004(a) is a non-jurisdictional claim-processing rule); Eberhart v. United States, 546 U.S. 12, 15-17 (2005) (same for Fed. R. Crim. P. 33); Bowles, 551 U.S. at 209-13 (holding that failure to abide by Fed. R. App. P. 4 deprives a court of jurisdiction as the rule echoed the deadlines set forth in 28 U.S.C. § 2107). In the wake of these cases, neither the D.C. Circuit nor the Supreme Court has spoken to whether Fed. R. Bankr. P. 8002 is a jurisdictional bar or a claim-processing rule.

At least one circuit has found that the deadline in Rule 8002 is statutorily established and reaffirmed its earlier holding that Fed. R. Bankr. P. 8002 remains a jurisdictional hurdle. See In re Latture, No. 09-6016, 2010 U.S. App. LEXIS 10276 (10th Cir. May 20, 2010). The Third Circuit recently revisited its earlier holding in In re Universal Minerals, Inc., 755 F.2d 309 (3d Cir. 1985), and noted that it was now unclear whether failure to comply with Rule 8002 is a jurisdictional defect or a "non-jurisdictional 'claim-processing rule' that is mandatory when invoked by a party, but subject to waiver if no timeliness objection is raised." In re Fryer, 235 Fed. Appx. 951, 953 (3d Cir. 2007). The Fryer Court did not resolve the ambiguity because ...


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