Sikes v. Swann

1
IN THE UNITED STATES BANKRUPTCY COURT
DISTRICT OF MARYLAND
at GREENBELT
In Re: 	*
* 	Case No. 	05-14086-TJC	Angela F. Swann
* 	Chapter 	7
Debtor 	*
************************************* 	*
*
*
Wayne L. Sikes
*
Plaintiff 	* 	Adv. No. 	05-01434
vs. 	*
*
*
Angela F. Swann
*
Defendant 	*
MEMORANDUM OPINION
Before the Court is Plaintiff’s Opposed Motion for Extension of Time to File
Notice of Appeal (the “Motion”) filed by Wayne L. Sikes Jr. (the “Plaintiff”). Docket
No. 74. The Plaintiff also filed Memorandum of Points and Authorities in Support of
Date signed June 12, 2007
Entered: June 13, 2007 Case 05-01434 Doc 85 Filed 06/13/07 Page 1 of 12

2
Plaintiff’s Opposed Motion for Extension of Time to File Notice of Appeal as well as an
affidavit (the “Affidavit”) in support of the Motion. Docket No. 76. Angela F. Swann
(the “Defendant”) filed Defendant’s Opposition to Plaintiff’s Motion for Extension of
Time to File Notice of Appeal (the “Opposition”). Docket No. 78.
In the Motion, the Plaintiff seeks an extension of time to file a notice of appeal
pursuant to Fed. R. Bankr. P. 8002(c)(2). The Plaintiff contends that his failure to appeal
timely the order dismissing the complaint was due to excusable neglect. The Defendant
disagrees. The Court heard argument on the Motion on June 11, 2007. For the reasons
set forth hereafter, the Court finds and concludes that the Plaintiff’s failure to file timely a
notice of appeal was not due to excusable neglect. Accordingly, the Court will deny the
Motion.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334, 157(a),
and Local Rule 402 of the United States District Court for the District of Maryland. This
is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). The following constitutes the
Court’s findings of fact and conclusions of law.
I. 	FINDINGS OF FACT
A. 	PROCEDURAL BACKGROUND
On May 27, 2005, the Plaintiff filed a complaint seeking to except from
discharge, pursuant to 11 U.S.C. § 523(a)(6), a pre-petition judgment for malicious
prosecution he obtained against the Defendant. Plaintiff obtained the judgment by
default in the Circuit Court for Montgomery County, Maryland. As pertinent to the
nondischargeability claim, the default judgment was entered in the amount of $146,952.
Case 05-01434 Doc 85 Filed 06/13/07 Page 2 of 12

3
Plaintiff and Defendant previously lived together and have a child. They have
been involved in a long series of domestic disputes. The essence of Plaintiff’s claims in
the circuit court, and the basis for his nondischargeability claim in this Court, is that
Defendant acted maliciously and with the intent to injure the Plaintiff when she swore out
two Applications for Statement of Charges against the Plaintiff in Montgomery County,
Maryland.
The Court conducted a trial on the complaint on February 16, 2007 and issued an
oral bench ruling on February 26, 2007, finding for the Defendant and ruling that the debt
was dischargeable. In that ruling the Court found and concluded, among other things,
that:
(1) 	Plaintiff has a history of verbally abusing Defendant.
(2) 	Plaintiff had a history of physically abusing Defendant.
(3) 	Plaintiff had a violent temper.
(4) 	Plaintiff drank heavily and used drugs.
(5) 	Plaintiff had pleaded guilty to second degree assault for
actions against the Defendant.
(6) 	The Montgomery County Circuit Court had issued a
protective order against the Plaintiff in favor of Defendant
based on Plaintiff’s actions.
Based on these findings, the Court found and concluded that the Defendant acted out of
fear for the safety of herself and her child when she swore out Applications for Statement
of Charges against the Plaintiff in Montgomery County. Accordingly, the Court
concluded that the Plaintiff did not prove that the default judgment was the result of a
willful and malicious injury to the Plaintiff by the Defendant.
On March 1, 2007, the Court entered the order dismissing the complaint. Both
the main bankruptcy case (Case No. 05-14068) and this adversary proceeding were
administratively closed on March 16, 2007. On March 22, 2007, the Plaintiff attempted
Case 05-01434 Doc 85 Filed 06/13/07 Page 3 of 12

4
to file the instant Motion with the Clerk of the Court. If filed on that date, the Motion
would have been filed outside of the initial 10 day period for filing a notice of appeal
under Fed. R. Bank. P. 8002(a) but within the subsequent 20 day period under Fed. R.
Bank. P.8002(c)(2). 	See also infra at p. 5. Because the bankruptcy case and the
adversary proceeding were closed, the Clerk rejected the filing.
The Plaintiff then immediately filed a motion to reopen the main bankruptcy case
of the Defendant seeking to reopen this adversary proceeding in order to file the instant
Motion. Docket No. 16, in Case No. 05-14068. The Court held a hearing on the motion
to reopen on May 2, 2007. The Court granted the motion to reopen and allowed the
Plaintiff to file the Motion. At the May 2, 2007 hearing, the Court, with the consent of
the Defendant, concluded that the Motion was deemed filed on March 22, 2007, the date
the Plaintiff first attempted to file it but was rejected by the Clerk. Accordingly, the
Court addresses the Motion herein as if it had been accepted for filing on March 22,
2007.
B. 	FACTS ALLEGED IN THE MOTION
In the Motion, the Plaintiff contends that he intended to timely appeal the
dismissal of the complaint but failed to do so due to excusable neglect. In support of this
contention, the Plaintiff filed an affidavit stating in pertinent part:
2. 	After the Court dismissed my complaint with prejudice
in the instant case on February 26, 2007, I consulted several
attorneys about whether I should appeal considering my
ongoing custody litigation with the Defendant over our
daughter, Michele. I also was seeking an attorney whom I
could afford as I initially received a price quote that was
prohibitive. This process took approximately two weeks
before I decided that it was in the best interest of both
myself and my daughter to appeal and was able to agree
with Mark G. Chalpin, Esq., [i.e., trial counsel in this
Case 05-01434 Doc 85 Filed 06/13/07 Page 4 of 12

5
adversary proceeding] on representation at a price I could
afford.
3. 	While I was deliberating on the whether to appeal and
finding representation at an affordable price, I was under
the assumption from my past few years experience of
litigating against the Defendant that I had 30 days from the
final judgment to file a notice of appeal. It was my
understanding, and I am not an attorney, that 30 days is a
standard time to file a notice of appeal. While I was
deliberating, I did not inquire of the attorneys I consulted as
to the time for filing a notice of appeal. Because of these
circumstances, I did not file a notice of appeal by March
11, 2007 and did not retain Mr. Chalpin until March 13,
2007.
The Defendant does not challenge the factual assertions in the affidavit, but contends that
the assertions do not provide a basis for a finding of excusable neglect.
II. 	CONCLUSIONS OF LAW
Generally, the notice of appeal in bankruptcy “shall be filed with the clerk within
10 days of the date of the entry of the judgment, order, or decree appealed from.” Fed. R.
Bankr. P. 8002(a). However, the time to file the notice of appeal may be extended in
certain circumstances. See Fed. R. Bankr. P. 8002(c). Rule 8002(c) provides in pertinent
part:
(c) Extension of Time for Appeal
(1) The bankruptcy judge may extend the time for filing
the notice of appeal by any party…
(2) A request to extend the time for filing a notice of
appeal must be made by written motion filed before the
time for filing a notice of appeal has expired, except that
such a motion filed not later than 20 days after the
expiration of the time for filing a notice of appeal may be
granted upon a showing of excusable neglect. An extension
of time filing a notice of appeal may not exceed 20 days
from the expiration of the time for filing a notice of appeal
otherwise prescribed by this rule or 10 days from the date
of entry of the order granting the motion, whichever is
later.
Case 05-01434 Doc 85 Filed 06/13/07 Page 5 of 12

6
Id.
In the instant case the Plaintiff filed the Motion on March 22, 2007, 1 twenty-one
days after the entry of the order which Plaintiff seeks to appeal, and eleven days after the
time to appeal under Rule 8002(a) had expired. Consequently, pursuant to Rule
8002(c)(2), the Plaintiff must show excusable neglect in order to obtain an extension.
“‘Excusable neglect’ is not easily demonstrated, nor was it intended to be.”
Thompson v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 534 (4th Cir. 1996). In
Pioneer Inv. Servs. Co. v. Brunswick Associates, Ltd., 507 U.S. 380 (1993) the Supreme
Court adopted a two prong test for determining whether time should be extended based
on excusable neglect. Resolution Trust Corp. v. SPR Corp. (In re SPR Corp.), 45 F.3d
70, 72 (4th Cir. 1995) (interpreting Pioneer to have applied a two step process in
determining excusable neglect). First, the delay in filing must be due to neglect. Id.
Second, the neglect must be excusable. Id. While Pioneer involved the issue of whether
a late filed proof of claim in a Chapter 11 case should be permitted based upon
“excusable neglect” as used in Bankruptcy Rule 9006, courts considering the issue have
concluded that the definition of excusable neglect in Pioneer is equally applicable in
cases involving the issue of whether late-filed notices of appeal should be permitted
based upon excusable neglect. See, e.g., Silivanch v. Celebrity Cruises, Inc., 333 F.3d
355, (2d Cir. 2003), cert. denied sub nom. Essef Corp. v. Silivanch, 540 U.S. 1105
(2004); Thompson, 76 F.3d at 533 (4th Cir. 1996) (applying the definition of excusable
neglect articulated by Pioneer in determining whether to enlarge the time to file a notice
1 See supra at p. 4.
Case 05-01434 Doc 85 Filed 06/13/07 Page 6 of 12

7
of appeal under Fed. R. App. P. 4(a)(5)); Christopher v. Diamond Benefits Life Ins. Co.,
35 F.3d 232, 236 (5th Cir. 1994).
“The ordinary meaning of ‘neglect’ is ‘to give little attention or respect’ to a
matter… to leave undone or unattended to esp[ecially] through carelessness.” Pioneer,
507 U.S. at 388 (quoting Webster's Ninth New Collegiate Dictionary 791 (1983)) Thus,
“courts would be permitted, where appropriate, to accept late filings caused by
inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond
the party's control.” Id.
Determining what sorts of neglect will be considered excusable, “is at bottom an
equitable” determination. Id. at 395. A court must consider all relevant circumstances
including (1) the danger of prejudice to the opposing party; (2) the length of the delay and
its potential impact on judicial proceedings; (3) the reason for the delay, including
whether it was within the reasonable control of the movant, and; (4) whether the movant
acted in good faith. Id. “[I]nadvertence, ignorance of the rules, or mistakes construing
the rules do not usually constitute excusable neglect…” Id. at 392; Thompson, 76 F.3d at
533 (interpreting Pioneer and stating “Though adopting a flexible understanding of the
phrase excusable neglect the Court specifically observed… that inadvertence, ignorance
of the rules, or mistakes construing the rules do not usually constitute excusable neglect”
(internal quotation marks omitted)). Courts have focused on the third Pioneer factor,
namely, whether the delay was within the reasonable control of the party seeking the
extension. Silivanch, 333 F.3d at 366 (“…we and other circuits have focused on the third
factor: ‘the reasons for the delay including whether it was within the reasonable control
of the movant.’”). “[T]he equities will rarely if ever favor a party who ‘fails to follow the
Case 05-01434 Doc 85 Filed 06/13/07 Page 7 of 12

8
clear dictates of a court rule’ … ‘where the rule is entirely clear, we continue to expect
that a party claiming excusable neglect will, in the ordinary course, lose under the
Pioneer test.’” Id. at 366-67 (internal citations omitted).
In the case at bar the Court finds and concludes that the Plaintiff’s failure to
timely file the notice of appeal was due to neglect. In the affidavit, the Plaintiff stated
that, based on his prior litigation experience, he was operating under the mistaken belief
that the time to appeal is 30 days rather than 10 days. He neglected to confirm whether
his erroneous understanding of the time to appeal was accurate by consulting his counsel
who represented him at the trial or otherwise researching the applicable bankruptcy rule.
He states he consulted several attorneys about representing him in his appeal but
apparently failed to ask any of them what the deadline was for filing a notice of appeal,
again because of his mistaken belief that he had a thirty day period. Consequently, the
Plaintiff’s failure to file a timely notice of appeal was due to his carelessness or
inadvertence, namely, for not making a conscious effort to assure he did not miss the
deadline to timely appeal, and thus constitutes neglect.
While the Plaintiff’s failure to timely file a notice of appeal was due to neglect,
the Court finds and concludes that the neglect is not excusable. As the Supreme Court
stated in Pioneer, “the determination of what sorts of neglect are excusable… is at bottom
an equitable determination…” that takes into account all of the pertinent circumstances
including the four factors enumerated above. 507 U.S. at 395.
First, the Court finds and concludes that the reason for the delay was within the
reasonable control of the Plaintiff. The Plaintiff stated that:
While I was deliberating on the whether to appeal and
finding representation at an affordable price, I was under
Case 05-01434 Doc 85 Filed 06/13/07 Page 8 of 12

9
the assumption from my past few years experience of
litigating against the Defendant that I had 30 days from the
final judgment to file a notice of appeal. It was my
understanding, and I am not an attorney, that 30 days is a
standard time to file a notice of appeal. While I was
deliberating, I did not inquire of the attorneys I consulted as
to the time for filing a notice of appeal.
Affidavit at ¶ 3. By his own admission, the Plaintiff consulted multiple attorneys in the
process of deciding whether to appeal the order dismissing the complaint and apparently
voluntarily chose not to inquire about the time limit to file an appeal in bankruptcy.
Instead, the Plaintiff chose to rely on an assumption that the standard time to appeal is 30
days based on his prior litigation experience with the Defendant. As noted above,
“inadvertence, ignorance of the rules, or mistakes construing the rules do not usually
constitute excusable neglect…” Pioneer, 380 U.S. at 392 (emphasis added). The
Plaintiff had multiple opportunities to avail himself of the deadline to appeal. He did not
do so. First, the Plaintiff could have inquired of his trial counsel (who continues to
represent him on the Motion) to clarify the deadline to file an appeal when the order
dismissing the complaint was entered. Similarly, the Plaintiff could have asked any of
the multiple attorneys he approached regarding the handling of the appeal to verify the
deadline to file the appeal. Moreover, the Plaintiff could have independently consulted
Rule 8002(a) which is clear on its face in setting out the ten day time period to appeal.
Instead, the Plaintiff’s own record establishes that he relied on his erroneous assumption
that he had formulated due to, ironically, the many years of litigation with the Defendant.
As noted above, “…where the rule is entirely clear, we continue to expect that a party
claiming excusable neglect will, in the ordinary course, lose under the Pioneer test.”
Silivanch, 333 F.3d at 366-67 (emphasis added).
Case 05-01434 Doc 85 Filed 06/13/07 Page 9 of 12

10
The Thompson case is instructive. There, the Fourth Circuit Court of Appeals
applied the standards for determining excusable neglect articulated by Pioneer in
determining whether to enlarge the time to file a notice of appeal under Fed. R. App. P.
4(a)(5) and concluded that the movant had not shown excusable neglect. In that case, the
movant mailed to the court the notice of appeal, which did not arrive at the courthouse
before the appeal deadline passed. In concluding that the movant failed to establish
excusable neglect, the court stated that the “litigant who decides to rely on the vagaries of
the mail must suffer the consequences” if the notice of appeal is not delivered timely. Id.
at 534. Likewise, in this case, the litigant who decides to rely on his layman’s
understanding of the appeal period, rather than verify that period with the attorneys with
whom he consults, suffers the consequences when it turns out he is wrong. Therefore, the
Court finds and concludes that the delay was within the reasonable control of the Plaintiff
to avoid.
Second, the Court finds and concludes that extending the time to allow the
Plaintiff to file a notice of appeal would severely prejudice the Defendant. By prevailing
at trial, the Defendant obtained a discharge of a debt owed to the Plaintiff in an amount of
$146,952 which became final after the time to appeal lapsed under Rule 8002(a). Now,
after further reflection, the Plaintiff seeks to revive the action in order to pursue an
untimely appeal. Although in any case the nonmoving party would be prejudiced by
granting the extension – obviously extending the moving party’s appeal rights is
disadvantageous to the nonmoving party – the Court finds particular prejudice to the
Defendant in this case. The Court did not find the merits of the trial to be especially
difficult to resolve. As noted above, this Court found that the Plaintiff has a history of
Case 05-01434 Doc 85 Filed 06/13/07 Page 10 of 12

11
abusing the Defendant, both verbally and physically, which led the Defendant to seek
protection from the appropriate authorities in Montgomery County, Maryland. Although
the Plaintiff obtained a default judgment against the Defendant, the Defendant’s conduct
that gave rise to the claim that resulted in the default judgment was not the type of willful
and malicious conduct that leads to the harsh result of a debt being determined to be non-
dischargeable. The Court, in exercising its discretion, finds that the equities in this case
militate strongly against allowing the Plaintiff to continue this action against the
Defendant and thereby prolonging the conflict between the parties. Further, based on the
record before this Court, the Court would be hard-pressed to consider a more troubling
result than to give the Plaintiff a non-dischargeable judgment to hold over the Defendant
for years to come.
Finally, a further factor to consider is whether the movant acts with good faith. In
this case, the Plaintiff asserts two reasons for wanting to appeal the nondischargeability
ruling. The primary reason is that the Circuit Court default judgment that Plaintiff
obtained against Defendant is “relevant to custody issues that [Plaintiff] has with
[Defendant] over their daughter.”2 The Court has no doubt that the Plaintiff’s desire to
prevail in any custody dispute with Defendant is sincere. 	The Court, however, finds
unsettling the prospect that Plaintiff’s motivation for seeking a nondischargeability
determination of a default judgment is to use the determination in a custody dispute.
Moreover, the Court notes that the Plaintiff’s underlying behavior toward the Defendant,
as described in the Findings of Fact, supra at p. 3, could hardly be considered indicia of
“good faith.”
2 Plaintiff’s Reply in Support of Motion for Extension of Time to File Notice of Appeal (Docket No. 80) at
p. 4.
Case 05-01434 Doc 85 Filed 06/13/07 Page 11 of 12

12
As stated above, the determination of whether the Plaintiff’s neglect is excusable
is “at bottom an equitable” one. Pioneer, 507 U.S. at 395. Under the circumstances of
this case, the Court finds no justifiable reason to breathe life into this case after the time
to appeal had lapsed.
III. CONCLUSION
For the forgoing reasons, the Motion will be DENIED. An appropriate order will
be entered.
Copies to:
Plaintiff
Plaintiff’s Counsel
Defendant
Defendant’s Counsel
Office of the U.S. Trustee
END OF ORDER
Case 05-01434 Doc 85 Filed 06/13/07 Page 12 of 12