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In Re: Barry Douglas

June 22, 2012

IN RE: BARRY DOUGLAS, APPELLANT/DEBTOR.


(Bankruptcy Case No. 09-00491)

The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION AND ORDER

Barry Douglas, proceeding pro se, appeals the U.S. Bankruptcy Court's order denying his motion for an extension of time to file a notice of appeal. See In re Douglas, No. 09-00491 (Bankr. D.D.C. filed June 9, 2009) [hereinafter "Bankr."]. Although the bankruptcy court has denied several of Douglas's motions, only the narrow issue of the order denying the motion for an extension of time is before the Court [Bankr. ECF No. 118]. Upon consideration of the record, and for the reasons stated below, the Court affirms the bankruptcy court's order and dismisses this appeal.

I. Background

Douglas filed his bankruptcy petition on June 9, 2009 [Bankr. ECF No. 1]. On September 4, 2009, the bankruptcy court issued an order authorizing Western Federal Credit Union to offset $28,000 of Douglas's credit-card debt with funds from his direct-deposit account [Bankr. ECF No. 75]. Thereafter, Douglas responded with successive motions to have that order vacated, reconsidered, and clarified, all of which were denied by the bankruptcy court,*fn1 and none of which are at issue in this appeal. On January 22, 2010-sixteen days after the order denying his motion to clarify-Douglas filed a motion for an extension of time to file a notice of appeal of that order [Bankr. ECF No. 111]. When that motion was denied [Bankr. ECF No. 118], he appealed to this Court pursuant to 28 U.S.C. § 158 (2006).

II. Standard of Review

Although this Circuit has not directly addressed the issue, other courts have reviewed a bankruptcy court's denial of a motion for an extension of time to file a notice of appeal for abuse of discretion. See, e.g., Dial Nat'l Bank v. Van Houweling (In re Van Houweling), 258 B.R. 173, 175 (B.A.P. 8th Cir. 2001); Allied Domecq Retailing USA v. Schultz (In re Schultz), 254 B.R. 149, 150 (B.A.P. 6th Cir. 2000). In this Circuit, courts have reviewed other decisions where a bankruptcy court exercises discretion under an abuse of discretion standard. See Advantage HealthPlan, Inc. v. Potter (In re Greater Se. Cmty. Hosp. Found. Inc.), 586 F.3d 1, 4 (D.C. Cir. 2009) (affirming district court's review of bankruptcy court's order striking objection for abuse of discretion); Speleos v. McCarthy, 201 B.R. 325, 327 (D.D.C. 1996) (reviewing bankruptcy court's order limiting trustee's disclosure obligations for abuse of discretion). Accordingly, the Court will review the bankruptcy court's decision for abuse of discretion. The burden is on the party seeking to reverse the ruling to prove that the bankruptcy court abused its discretion by "bas[ing] its ruling on an erroneous view of the law or a clearly erroneous assessment of the facts." Johnson v. McDow (In re Johnson), 236 B.R. 510, 518 (D.D.C. 1999) (quoting Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 405 (1990)).

III. Discussion

Federal Rule of Bankruptcy Procedure 8002 governs the time for filing a notice of appeal. Douglas did not file his motion for an extension of time to file a notice of appeal within the fourteen-day period prescribed by Rule 8002(a) for filing a notice of appeal. Hence, under Rule 8002(c)(2), Douglas needed to make "a showing of excusable neglect" before the bankruptcy court could consider his motion.*fn2 See Van Houweling, 258 B.R. at 175.

The Supreme Court has interpreted "excusable neglect" in the context of another Federal Rule of Bankruptcy Procedure, 9006(b)(1),*fn3 to require an equitable determination, "taking account of all relevant circumstances." Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395-96 (1993). In particular, the Supreme Court noted that relevant factors in determining "what sorts of neglect will be considered excusable" include:

[1] the danger of prejudice to the [non-moving party],

[2] the length of the delay and its potential impact on judicial proceedings,

[3] the reason for the delay, including whether it was within reasonable ...


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