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Miles v. Makishima

IN THE UNITED STATES DISTRICT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 12, 2009

GRACE MILES, APPELLANT,
v.
ROYCE LEE MAKISHIMA, TERRA ANN MAKISHIMA, APPELLEES.

ORDER RE: MOTION TO DISMISS BANKRUPTCY APPEAL

Appellees Royce Lee Makishima and Terra Ann Makishima filed a joint voluntary petition for bankruptcy under Chapter 7 of the U.S. Bankruptcy Code. Appellant Grace Miles, currently proceeding pro se, filed a Complaint and a First Amended Complaint ("FAC") in that proceeding alleging that appellees' debt was non-dischargeable. (Mot. Dismiss Exs. B, C.) Appellees then filed a motion to dismiss the FAC, and appellant filed a motion to disqualify appellees' counsel, Morgan, Lewis & Bockius LLP. (Id. Exs. F, G, H, I.)

In two Minute Orders dated November 21, 2008, the bankruptcy court granted appellees' motion to dismiss the FAC and denied appellant's motion to disqualify appellees' counsel. (Id.) Appellant subsequently appealed those orders to a bankruptcy appellate panel on December 2, 2008, and her appeal was then transferred to this court on December 29, 2008, pursuant to 28 U.S.C. § 158(c)(1)(B). (See Docket No. 1.) Appellees now move to dismiss the appeal pursuant to Federal Rules of Bankruptcy Procedure 8001 and 8002.*fn1

Federal Rule of Bankruptcy Procedure 8001(a) provides that "[a]n appeal from a judgment, order, or decree of a bankruptcy judge to a district court or bankruptcy appellate panel . . . shall be taken by filing a notice of appeal with the clerk within the time allowed by Rule 8002." In turn, Federal Rule of Bankruptcy Procedure 8002(a) provides that "[t]he notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from." "'An untimely notice deprives the district court of jurisdiction to review the bankruptcy court's order.'" In re Dobard, No. 03-1624, 2003 WL 1936129, at *1 (N.D. Cal. Apr. 18, 2003) (quoting In re Souza, 795 F.2d 855, 857 (9th Cir. 1986)); see In re Slimick, 928 F.2d 304, 306 (9th Cir. 1990) ("The untimely filing of a notice of appeal is jurisdictional.").

Pursuant to Federal Rule of Bankruptcy Procedure 9006 ("Computing Time"), appellant's notice of appeal from the Minute Orders entered on November 21, 2008, was due no later than December 1, 2008.*fn2 Appellant, however, filed her notice of appeal on December 2, 2008, and there is no indication that appellant sought or obtained an extension of this deadline from the bankruptcy court pursuant to Federal Rule of Bankruptcy Procedure 8002(b). Indeed, before transferring the matter to this court, the bankruptcy appellate panel noted the untimely filing of the appeal when it issued its "Notice of Deficient Appeal and Impending Dismissal" due to "lack of jurisdiction of the bankruptcy appellate panel. (Docket No. 1 at 3 (citing Slimick, 928 F.2d at 306).) Accordingly, appellant's untimely filing divests this court of jurisdiction to hear her appeal, and the court must grant appellees' motion to dismiss.

IT IS THEREFORE ORDERED that appellees' motion to dismiss be, and the same hereby is, GRANTED;

AND IT IS FURTHER ORDERED that the appeal from the Bankruptcy Court's minute orders of November 21, 2008, be, and the same hereby is, DISMISSED.


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