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In Re: Stanley J. Caterbone

April 4, 2011

IN RE: STANLEY J. CATERBONE, STANLEY J. CATERBONE, APPELLANT


APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 06-cv-05012) District Judge: Honorable Anita B. Brody

The opinion of the court was delivered by: Barry, Circuit Judge

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) March 17, 2011

Before: BARRY, CHAGARES and ROTH, Circuit Judges

OPINION OF THE COURT

This case involves an untimely notice of appeal to the District Court after the Bankruptcy Court‟s dismissal, for cause, of a Chapter 11 petition. The question before us is whether, pursuant to 28 U.S.C. § 158(c)(2) and the Federal Rules of Bankruptcy Procedure, an untimely filing such as the one at issue here deprives subsequent reviewing courts--here, both the District Court and this Court--of jurisdiction over the appeal. We conclude that it does. Accordingly, we will dismiss the instant appeal and remand to the District Court with instructions to dismiss the appeal to it from the Bankruptcy Court for lack of subject matter jurisdiction.

I. Background

Appellant Stanley J. Caterbone filed a Chapter 11 bankruptcy petition in May 2005. The United States Trustee subsequently moved to dismiss the petition for cause, and the Bankruptcy Court granted the motion on October 3, 2006, citing various substantive and procedural deficiencies. See 11 U.S.C. § 1112(b).

The order of dismissal was mailed to Caterbone by first class mail on October 5, 2006. On October 16, he sent a notice of appeal by first class mail and electronic mail. However, the notice of appeal was filed with the District Court on October 19, rendering it untimely because it occurred outside the ten-day window, then in place, for filing a notice of appeal. See Fed. R. Bankr. P. 8002(a) (2006).*fn1 It is undisputed that Caterbone did not file a "request to extend the time for filing a notice of appeal ... by written motion ... before the time for filing a notice of appeal ha[d] expired," nor did the Bankruptcy Court grant such an extension following "a motion filed not later than 20 days after the expiration of the time for filing a notice of appeal ... upon a showing of excusable neglect." Id. 8002(c)(2).

Despite its untimely filing, Caterbone‟s appeal was docketed in the District Court on November 14, and the Trustee did not argue that it was untimely. On March 15, 2007, the Court sua sponte dismissed the appeal, citing Caterbone‟s failure to comply with Fed. R. Bankr. P. 8006, which requires that a petitioner designate "items to be included in the record on appeal and a statement of the issues to be presented." Caterbone appealed to this Court. Shortly thereafter, the Trustee moved to dismiss the appeal, citing, for the first time, Caterbone‟s initial untimely notice of appeal, and arguing that, as a result of the untimely filing, the District Court lacked subject matter jurisdiction.

Following various intervening events, including the appointment of amicus curiae, the case is now before us. The Trustee argues that, consistent with Bowles v. Russell, 551 U.S. 205 (2007), Section 158(c)(2) established a mandatory, jurisdictional deadline that statutorily encompasses Rule 8002(a)‟s specified timeline for appealing the judgment of a bankruptcy court, such that the timeline is not akin to a freestanding, waivable "claim-processing rule" within the meaning of Kontrick v. Ryan, 540 U.S. 443 (2004). Amicus argues similarly. Caterbone, on the other hand, elides the Bowles analysis and argues, inter alia, that his untimely filing should be addressed, and excused, under the standard of "excusable neglect" set forth in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380 (1993).

For the reasons explained below, we hold that the prescribed timeline within which an appeal from a bankruptcy court must be filed is mandatory and jurisdictional, thus affirming, in light of Bowles, the rule that we applied in Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997).

II. Jurisdiction and Standard of Review

Jurisdiction is the threshold issue in this case, and we must address its relevance both to the decision rendered by the District Court, and to our review of that decision. Thus, as an initial matter, we note that we have jurisdiction over the final decision that the District Court rendered on ...


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