Pemstein v. Pemstein

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UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
In re
MARTIN PEMSTEIN and DIANA
PEMSTEIN, Debtors.
Case No. 2:12-bk-15900-RK
Chapter 11
Adv No. 2:12-ap-02467-RK
ORDER GRANTING MOTION FOR
EXTENSION OF TIME TO FILE A
NOTICE OF APPEAL
MARTIN PEMSTEIN, Plaintiff,
vs.
HAROLD PEMSTEIN,
Defendant.
Hearing Date: July 2, 2013
Time: 2:00 p.m.
Courtroom: 1675
On June 27, 2013, Plaintiff Martin Pemstein (“debtor”) filed a motion for extension
of time to file a notice of appeal of this court’s order dismissing debtor’s complaint in this
adversary proceeding, entered on May 30, 2013 (the “Motion”). The court granted
debtor’s separate application for order shortening time, setting the Motion for hearing on
FILED & ENTERED
JUL 02 2013
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	bakchell
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July 2, 2013 at 2:00 p.m. On July 1, 2013, the Defendant filed an Opposition to the
Motion. After carefully considering the moving and opposing papers, the court takes the
Motion under submission, takes the hearing off calendar, and grants the Motion based on
debtor's showing of excusable neglect pursuant to Federal Rule of Bankruptcy Procedure
(FRBP) 8002(c)(2).
Pursuant to FRBP 8002(a), debtor had 14 days to file a notice of appeal of the
dismissal order entered on May 30, 2013, or until June 13, 2013. Debtor did not file a
timely notice of appeal by the expiration date of June 13, 2013 for filing a timely notice of
appeal.
Debtor filed a motion to extend time to file a notice of appeal pursuant to FRBP
8002(c)(2), which provides: “A request to extend the time for filing a notice of appeal must
be filed before the time for filing a notice of appeal has expired, except that such a motion
filed not later than 21 days after the expiration of the time for filing a notice of appeal may
be granted upon a showing of excusable neglect.” Although debtor did not file the
motion to extend time to appeal by the expiration date for filing a notice of appeal, on
June 27, 2013, he filed a timely motion to extend time to appeal based on excusable
neglect since the motion was filed within 21 days of the expiration of the normal appeal
period, or July 4, 2013.
The issue before the court is whether debtor has shown excusable neglect for not
filing a timely notice of appeal under the normal 21-day deadline under FRBP 8002(b).
FRBP 8002(c)(2); 10 Resnick and Sommer, Collier on Bankruptcy, ¶ 8002.10.2[2] at
8002-16 – 8002-17 (16th ed. 2012), citing Pioneer Investment Services Co. v. Brunswick
Associates Limited Partnership, 507 U.S. 380, 395 (1993). In Pioneer, the Supreme
Court held that the determination of whether neglect is “excusable” is “at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s
omission” and stated that a court should consider such circumstances, including: (1) the
danger of prejudice to the opposing party, (2) the length of the delay and its potential
impact on the proceedings, (3) the reason for the delay, and (4) whether the movant
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acted in good faith. 507 U.S. at 395. While Pioneer addressed excusable neglect for
enlargement of time under the FRBP in general pursuant to FRBP 9006(b)(1), Collier on
Bankruptcy suggests that there is no good reason why the rationale in Pioneer should not
apply to FRBP 8002(c)(2) governing time to extend time to appeal. 10 Resnick and
Sommer, Collier on Bankruptcy, ¶ 8002.10.2[2] at 8002-17, citing Pioneer Investment
Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. at 395.
As attested to by debtor in his declaration in support of the motion, debtor as a
layperson in this adversary proceeding did not receive notice of the court's dismissal
order in time to file a timely notice of appeal because of the sale of his residence (2516
Vista Baya, Newport Beach, CA 92660-3636) and his moving to a new address, which
was his mother-in-law’s address (38 Calle Aragon, Unit F, Laguna Woods, CA 92637).
According to the debtor (in the points and authorities for the motion, but not in his
declaration in the motion), he was in the process of moving when the court entered its
dismissal order on or about May 23, 2013, and that the United States Postal Service put
a hold on mail sent to the old address on or about May 27, 2013 with a 15-day lead time
before forwarding mail to a new address. Thus, according to debtor, he only received a
copy of the dismissal order on June 12, 2013 forwarded by USPS from the old address,
which did not give him sufficient time to file a timely notice of appeal, and no copy of the
dismissal order was directly delivered to him at the new address.
The notice of entered order and service list for the dismissal order indicated both
debtor’s old and new addresses, but the certificate of notice of mailing of the dismissal
order issued for the court by the Bankruptcy Noticing Center filed on June 1, 2013
(Docket No. 40) indicates that debtor was only served at the old address and not at the
new address.
It appears that debtor may have neglected to notify the court of his new address
by formal notice of change of address, thinking that listing his new address on his
subsequent pleadings was sufficient, which is not (see FRBP 4002(a)(5)), and thus, it
further appears that the Bankruptcy Noticing Center only mailed a copy of the dismissal
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order to debtor at the old address. This fact corroborates debtor’s factual contentions
that no copy of the dismissal order was directly mailed to him at the new address, but that
the only copy of the dismissal order mailed to him was substantially delayed because it
was sent to the old address with a USPS forwarding hold.
Debtor said that he learned about the dismissal order when he logged onto the
court’s tentative ruling calendar on June 11, 2013 for June 12, 2013 and saw that the
status conference on June 12 was vacated due to the dismissal, but did not receive an
actual copy of the dismissal order until it was forwarded to the new address and delivered
on June 12. (However, the court does not agree with debtor’s contention that no
hearings were conducted on the merits of the motion to dismiss, which contention is not
supported by the record of the hearing on April 23, 2013, at which hearing the merits of
the motion were extensively argued, and not just on bankruptcy court jurisdiction.).
These circumstances show excusable neglect because the debtor did not actually
receive a copy of the dismissal order until the day before the time to appeal expired and
had insufficient time to file a timely notice of appeal (the court notes that debtor does not
explicitly argue that receiving an actual copy of the dismissal order the day before the
appeal expiration date was insufficient, but this is implicit from the motion in general).
These facts indicate the reason for debtor’s delay in filing a notice of appeal and his
acting in good faith regarding filing a notice of appeal, which are two of the four Pioneer
factors. The other two Pioneer factors of the danger of prejudice to the opposing party
and the length of the delay and its potential impact on the proceedings do not negate
excusable neglect in this court’s view. There is no prejudice to the defendant as the
opposing party because the delay of debtor in filing a notice of appeal is not more than a
few weeks, and given the debtor’s vigorous opposition to the motion to dismiss,
defendant expected and knew or should have reasonably expected and known that
debtor would take an appeal of the dismissal order. For the foregoing reasons, the court
in considering the Pioneer factors finds that debtor has shown excusable neglect to
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warrant granting of his motion to extend time to file a notice of appeal pursuant to FRBP
8002(c)(2).
IT IS HEREBY ORDERED that the Motion is granted.
IT IS FURTHER ORDERED that debtor shall have until July 16, 2013 to file a
notice of appeal of the order dismissing debtor’s complaint.
IT IS FURTHER ORDERED that the hearing scheduled for July 2, 2013 at
2:00 p.m. is vacated and no appearances are required.
IT IS SO ORDERED.
###
Date: July 2, 2013
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NOTICE OF ENTERED ORDER AND SERVICE LIST
Notice is given by the court that a judgment or order entitled (specify) ORDER GRANTING MOTION FOR
EXTENSION OF TIME TO FILE A NOTICE OF APPEAL was entered on the date indicated as “Entered”
on the first page of this judgment or order and will be served in the manner indicated below:
I. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (“NEF”) – Pursuant to controlling
General Order(s) and Local Bankruptcy Rule(s), the foregoing document was served on the following
person(s) by the court via NEF and hyperlink to the judgment or order. As of July 2, 2013, the following
person(s) are currently on the Electronic Mail Notice List for this bankruptcy case or adversary proceeding
to receive NEF transmission at the email address(es) indicated below:
Christopher L Blank clblank@pacbell.net
Alan W Forsley awf@fl-lawyers.net, awf@fkllawfirm.com,addy@fl-lawyers.net,lc@fl-lawyers.net,awf@fl-
lawyers.net
United States Trustee (SA) ustpregion16.sa.ecf@usdoj.gov
Service information continued on attached page
II. SERVED BY THE COURT VIA U.S. MAIL: A copy of this notice and a true copy of this judgment or
order was sent by U.S. Mail, first class, postage prepaid, to the following person(s) and/or entity(ies) at the
address(es) indicated below:
Martin Pemstein
2516 Vista Baya
Newport Beach, CA 92660
Martin Pemstein
38 Calle Aragon #F
Laguna Woods, CA 92637 Service information continued on attached page
III. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this judgment or
order which bears an “Entered” stamp, the party lodging the judgment or order will serve a complete copy
bearing an “Entered” stamp by U.S. Mail, overnight mail, facsimile transmission or email and file a proof of
service of the entered order on the following person(s) and/or entity(ies) at the address(es), facsimile
transmission number(s) and/or email address(es) indicated below:
Service information continued on attached page
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