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Guy v. Anderson

United States District Court, C.D. California

January 5, 2015

Edward Guy
v.
Peter C. Anderson, United States Trustee (In Re Tanya Miller)

CIVIL MINUTES--GENERAL

Honorable MICHAEL W. FITZGERALD, United States District Judge.

Proceedings (In Chambers): ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION

Before the Court is Appellee Peter C. Anderson, United States Trustee for Region 16's Motion for Dismissal of Untimely Appeal. (Docket No. 10). Appellant Edward Guy has not filed an opposition to the present Motion.

The Court has read and considered the papers filed on this Motion and as indicated in its prior order, (Docket No. 14), deems the matter appropriate for decision without oral argument. See Fed.R.Civ.P. 78(b); Local Rule 7-15.

Under Local Rule 7-9, Plaintiff was required to file an opposition not later than 21 days before the hearing. Applying Local Rule 7-9, the opposition should have been filed on or before December 15, 2014. Failure to do so may be deemed consent to the granting of the motion. See Local Rule 7-12. The Court deems Appellant's failure to file an opposition as consent to the granting of the motion.

The Court also finds that that the Motion is appropriately granted on their merits. For the reasons stated below, the Court DISMISSES the appeal for lack of jurisdiction.

Discussion

The present Motion arises from an attempted appeal from an Order Denying Motion of Edward Leon Guy, III to Set Aside and Vacate Orders Made and Entered issued by the Bankruptcy Court on August 25, 2014 in In re Tanya Marie Miller, 6:13-bk-13486-SY, Docket No. 86. Appellant filed a notice of appeal on September 18, 2014, 24 days after the entry of the order which he seeks to appeal. (Docket No. 2). Under 28 U.S.C. § 158, a district court has jurisdiction to consider an appeal from the bankruptcy court only if the appeal is taken " in the time provided by Rule 8002 of the Bankruptcy Rules." Rule 8002(a) provides that a notice of appeal must be filed within 14 days of entry of the order appealed. Appellant's notice of appeal was therefore untimely.

The Ninth Circuit has held that the " provisions of the Bankruptcy Rule 8002 are jurisdictional; the untimely filing of a notice of appeal deprives the appellate court of jurisdiction to review the bankruptcy court's order." Anderson v. Mouradick (In re Mouradick), 13 F.3d 326, 327 (9th Cir. 1994). Because Appellant's notice of appeal was untimely, this Court lacks jurisdiction to consider the appeal.

Accordingly, the Court DISMISSES the appeal for lack of jurisdiction.

IT IS SO ORDERED.


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