United States District Court, D. New Jersey, Camden Vicinage
IN RE BALTIMORE GRILL, INC.
CATHERINE E. YOUNGMAN, Appellee. JACQUELINE TARSITANO, Appellant,
Jacqueline Tarsitano Pro Se Appellant
B. Chovanes, Esq. Fox Rothschild LLP Attorney for Appellee
Catherine E. Youngman.
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon the Notice of Appeal from
Bankruptcy Court [Docket No. 1] by pro se Appellant
Jacqueline Tarsitano (“Appellant”) and the Motion
to Dismiss the Appeal for Lack of Subject Matter Jurisdiction
[Docket No. 6] by Appellee Catherine E. Youngman (the
“Trustee”), the Chapter 11 Trustee for the estate
of Debtor Baltimore Grill, Inc. (the “Debtor”).
On January 10, 2017, Appellant filed the Notice of Appeal
with the Clerk of the Bankruptcy Court, appealing the
Bankruptcy Court's December 21, 2016 Order [Docket No.
1-2] granting the Trustee's Motion to Sell Property Free
and Clear of Liens under Section 363(f) of the Bankruptcy
Code. Subsequently, the Trustee moved to dismiss the instant
appeal for lack of subject matter jurisdiction as untimely.
For the following reasons, the Court grants the Trustee's
motion to dismiss and dismisses the instant appeal with
Baltimore Grill, Inc. is a restaurant in Atlantic City, New
Jersey, which has been owned and operated by Appellant's
family for decades. On January 18, 2016, the Debtor filed a
voluntary bankruptcy petition under Chapter 11 of title 11 of
the United States Code in the Bankruptcy Court for the
District of New Jersey. Bankruptcy Case No. 16-10816 (JNP).
On May 27, 2016, Catherine E. Youngman was appointed as the
Chapter 11 Trustee for the Debtor [Bankruptcy Docket No. 74].
Thereafter, the Trustee moved before the Bankruptcy Court for
the entry of an order authorizing the Trustee to sell the
Debtor's business assets, inventory, liquor license, and
real property, as well as an order approving bidding
procedures for the proposed sale (the “Sale
Motion”) [Bankruptcy Docket No. 123]. According to
Appellant, upon learning of the Sale Motion, she contacted a
friend, Ms. Janaya Moscony, about whether Ms. Moscony would
be willing to invest or purchase the restaurant and Ms.
Bankruptcy Court held a hearing on the Trustee's Sale
Motion on December 6, 2016. Appellant and members of her
family participated in the hearing. The same day, a sale
auction was conducted. Both Ms. Moscony and Boulevard Capital
LLC participated in the auction bidding. Ultimately,
Boulevard Capital LLC was the highest bidder and the
Bankruptcy Court approved the sale [Bankruptcy Docket
12/6/2016 Minutes]. On December 21, 2016, the Bankruptcy
Court issued the Order approving the sale, which is the
subject of the instant appeal.
January 10, 2017, Appellant filed the Notice of Appeal
[Docket No. 1], requesting that this Court reverse the
Bankruptcy Court's Order approving the sale to Boulevard
Capital LLC and permit Ms. Moscony to purchase the
Debtor's assets. The Notice of Appeal, however, was not
accompanied by the requisite $298.00 filing fee [Docket No.
1-1]. As a result, this Court issued an Order directing
Appellant to submit the filing fee, as required by Federal
Rule of Bankruptcy Procedure (“Bankruptcy Rule”)
8003(a)(3)(C), or complete an application to proceed in
forma pauperis, no later than February 17, 2017 [Docket
No. 2]. Thereafter, the Deputy Clerk of the Bankruptcy Court
filed a Certification of Failure to File Designation of
Record, indicating that Appellant had failed to timely file a
designation of record on appeal or request an extension of
time to do so from the Bankruptcy Court, pursuant to
Bankruptcy Rule 8009 [Docket No. 3]. On or about February 17,
2017, Appellant submitted a document providing proof of
payment to the Bankruptcy Court [Docket No. 5]. Although the
submission is titled “Request for Extension of Time to
File Designation of Record on Appeal, ” its contents
merely reiterate Appellant's arguments set forth in the
Notice of Appeal. Id.
February 22, 2017, the Trustee moved to dismiss the instant
appeal for lack of subject matter jurisdiction [Docket No.
6]. Appellant has not replied substantively to the
Trustee's arguments in favor of dismissal, but instead
has repeated the arguments made in the Notice of Appeal
[Docket Nos. 8, 10].
Trustee moves to dismiss the instant appeal for lack of
subject matter jurisdiction as Appellant did not timely file
the Notice of Appeal in accordance with Bankruptcy Rule
8002(a). Bankruptcy Rule 8002(a) requires that “a
notice of appeal must be filed with the bankruptcy clerk
within 14 days after the entry of the judgment, order, or
decree being appealed.” The Bankruptcy Court may extend
the time to file a notice of appeal upon motion by a party
that is filed “within the time prescribed by”
Bankruptcy Rule 8002, i.e. within fourteen days of the entry
of the appealed order, or “within 21 days after that
time, if the party shows excusable neglect.”
Fed.R.Bankr.P. 8002(d)(1). Bankruptcy Rule 8002 specifically
provides, however, that the Bankruptcy Court “may not
extend the time to file a notice of appeal” if the
order appealed from “authorizes the sale or lease of
property or the use of cash collateral under § 363 of
the [Bankruptcy] Code.” Fed.R.Bankr.P. 8002(d)(2)(B).
prescribed timeline within which an appeal from a bankruptcy
court must be filed is mandatory and jurisdictional.”
In re Caterbone, 640 F.3d 108, 111-12 (3d Cir.
2011). An appellant's “[f]ailure to file a timely
notice of appeal thus deprives the district court of
jurisdiction to review the bankruptcy court's order or
judgment.” In re Universal Minerals, Inc., 755
F.2d 309, 312 (3d Cir. 1985); accord In re
Syntax-Brillian Corp., ___ F. App'x ___, 2017 WL
2211253, at *2 n.2 (3d Cir. May 19, 2017); In re
Chavannes, 658 F. App'x 65, 68 (3d Cir. 2016)
(“This requirement is jurisdictional and
non-waivable”); In re Jarusik, 653 F.
App'x 772, 773 (3d Cir. 2016); In re Smith, 189
F. App'x 88, 89 (3d Cir. 2006) (quoting Shareholders
v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997)).
Appellant's Notice of Appeal clearly is untimely. Thus,
while the Court recognizes and is sensitive to
Appellant's distress over the loss of her family's
business, the Court lacks subject matter jurisdiction to
consider this appeal. The Bankruptcy Court issued the
appealed Order on December 21, 2016. Appellant filed the
Notice of Appeal on January 10, 2017, twenty days later.
Under Bankruptcy Rule 8002(a), however, the time to file the
Notice of Appeal expired on January 4, 2017, fourteen days
after the entry of the appealed Order. Additionally,
Appellant did not request an extension to file the Notice of
Appeal from the Bankruptcy Court at any time, let alone
during the time prescribed by Bankruptcy Rule 8002 or within
21 days after that time, upon a showing of excusable neglect.
See Fed.R.Bankr.P. 8002(d)(1). In any event, the
Bankruptcy Court could not have extended the time for
Appellant to file the Notice of Appeal because the appealed
Order authorized the sale of the Debtor's assets and real
property pursuant to Section 363 of the Bankruptcy Code.
Fed.R.Bankr.P. 8002(d)(2)(B); see also In re Bowen,
2009 WL 1173522, at *2 (D.N.J. Apr. 24, 2009).
Rule 8002 “has been strictly construed, requiring
strict compliance with its terms.” In re
UniversalMinerals, 755 F.2d at 311-12.
Moreover, Appellant's pro se status does not
relax this jurisdictional requirement. Wong v.
Blase, 2014 WL 4896975, at *5 n.3 (D.N.J. Sept. 29,
2014) (“Appellant's pro se status does not
alter the jurisdictional requirement of [Bankruptcy] Rule
8002.”) (collecting cases).Indeed, the Third Circuit has
consistently applied this jurisdictional timeliness
requirement in cases involving pro se appellants in
bankruptcy proceedings and affirmed district court decisions
dismissing untimely appeals from bankruptcy court orders for
lack of subject matter jurisdiction. See, e.g.,
In re Syntax-Brillian, 2017 WL 2211253, at *2 n.2;
In re Chavannes, 658 F. App'x at 68; In re
Jarusik, 653 F. App'x at 773; In re
Coppedge, 619 F. App'x 57, 58-59 (3d Cir. 2015);
In re Hussain, 532 F. App'x 196, 197 (3d Cir.
2013); In re Caterbone, 640 F.3d at 111-12; In