Hermosilla v. Hermosilla

UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
EASTERN DIVISION
_____________________________________
IN RE:
ALEX HERMOSILLA, 	Chapter 7
DEBTOR. 	Case No. 05-11048-WCH
_____________________________________
HILDA CRISTINA HERMOSILLA,
PLAINTIFF,
Adversary Proceeding
v. 	No. 05-1360
ALEX HERMOSILLA,
DEFENDANT.
_____________________________________
MEMORANDUM OF DECISION
I. INTRODUCTION
The matter before the Court is the Plaintiff/Appellee’s Motion to Dismiss Appeal (the
“Motion to Dismiss”) filed by Hilda Cristina Hermosilla (“Cristina”) and the objection thereto (the
“Objection”) filed by Alex Hermosilla (the “Debtor”). Cristina seeks to dismiss the present appeal
on the basis that the Designation of the Record on Appeal and Statement of Issues (collectively, the
“Designation”) were filed one day late. For the reasons set forth below, I will deny the Motion to
Dismiss.
On May 26, 2010, I entered judgment in favor of Cristina on the sole remaining count of her
complaint. On June 7, 2010, the Debtor filed a timely notice of appeal (the “Notice of Appeal”) and
election to have his appeal heard by the United States District Court for the District of
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Massachusetts. Upon the filing of the Notice of Appeal, the docket entry reflected that the deadline
by which to file the Designation was June 21, 2010. The following day, the bankruptcy court’s
Clerk’s Office issued the Notice of Filing of Appeal to District Court which informed the Debtor
that, pursuant to Fed. R. Bankr. P. 8006, he was required to file with this Court the Designation
within fourteen days of the filing of the Notice of Appeal.
The Debtor, however, did not file the Designation until June 22, 2010. 	Two days later,
Cristina filed the Motion to Dismiss on the basis that the Debtor failed to comply with Fed. R.
Bankr. P. 8006 by filing the Designation late. 	On July 5, 2010, the Debtor filed the Objection1
denying the untimeliness of the Designation and asserting, inter alia, that the absence of merit is not
a basis for the bankruptcy court to dismiss the appeal.
II. DISCUSSION
Fed. R. Bankr. P. 8006 provides that “[w]ithin 14 days after filing the notice of appeal . . .
the appellant shall file with the clerk . . . a designation of the items to be included in the record on
appeal and a statement of the issues to be presented.” 	If the appellant fails to do so, the Local Rules2
of the United States District Court for the District of Massachusetts authorize and direct the
bankruptcy court to dismiss an appeal. 	To compute the deadline set forth in Fed. R. Bankr. P. 80063
properly, one must “exclude the day of the event that triggers the period” and “count every day,
I note, however, that a large portion of her accompanying memorandum focuses on the1
alleged frivolity of the Debtor’s appeal.
Fed. R. Bankr. P. 8006.2
LR, D. Mass. 203(A).3
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including intermediate Saturdays, Sundays, and legal holidays,” including the last day of the period.4
In the present case, the Notice of Appeal was filed on June 7, 2010. Applying the formula in Fed.
R. Bankr. P. 9006(a), the fourteen day period began on June 8, 2010, the day after the day of the
triggering event, and continued through June 21, 2010. 	Therefore, the Designation, having been5
filed on June 22, 2010, was one day late.
With few exceptions not relevant here, time periods under the Federal Rules of Bankruptcy
Procedure may nonetheless be extended after their expiration upon the filing of a motion where the
failure act timely was the result of excusable neglect. 	In Pioneer Inv. Servs. Co. v. Brunswick6
Assocs. Ltd. P’ship, the Supreme Court of the United States held that “neglect” includes omissions7
caused by inadvertence, mistake, or carelessness. It further concluded that the determination of
whether neglect is excusable is an equitable one, and courts must consider all relevant circumstances
surrounding the party’s omission, including:
the danger of prejudice . . . the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.8
Because the Fed. R. Bankr. P. 9006(b)(1) requires a motion, I will construe the Objection
as a motion to file the Designation late. Although the Objection takes the erroneous position that
Fed. R. Bankr. P. 9006(a)(1)(A)-(C).4
Contrary to the Debtor’s suggestion, the fact that the Court’s notice of filing of appeal5
entered the day after the Notice of Appeal was filed is not significant because the Notice of
Appeal is the triggering event under Fed. R. Bankr. P. 8006.
See Fed. R. Bankr. P. 9006(b).6
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993).7
Id. at 395.8
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the Designation was filed timely, the cause for the delay is apparent - the Debtor simply
miscalculated the fourteen day period. Applying the Pioneer factors to the present case, it appears
the Debtor simply made a good faith mistake in calculating the Fed. R. Bankr. P. 8006 deadline that
resulted in the Designation having been filed one day late, prejudicing no one. Despite Cristina’s
assertions that the appeal was taken in bad faith and is meritless, those are not appropriate grounds
for me to dismiss an appeal of my own order. 	Pursuant to Fed. R. Bankr. P. 9006(b)(1), I will9
retroactively extend by one day the period in which to file the Designation, rendering the Motion to
Dismiss ill taken.
III. CONCLUSION
In light of the foregoing, I will enter an order extending by one day the deadline by which the
Debtor was to file the Designation and deny the Motion to Dismiss.
______________________________
William C. Hillman
United States Bankruptcy Judge
Dated: July 8, 2010 	.
See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); Watson v.9
Boyajian (In re Watson), 403 F.3d 1, 6 (1st Cir. 2005); Whispering Pines Estates, Inc. v. Flash
Island, Inc. (In re Whispering Pines Estates, Inc.), 369 B.R. 752, 757 (B.A.P. 1st Cir. 2007).
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