1

 The Honorable Kathy A. Surratt-States, Bankruptcy Judge, United States

Bankruptcy Court for the Eastern District of Missouri.

United States Bankruptcy Appellate Panel

FOR THE EIGHTH CIRCUIT

_______________

No. 08-6025

_______________

In re: President Casinos, Inc., *

*

Debtor *

*

Alma Jackson, * Appeal from the United States

* Bankruptcy Court for the

Creditor - Appellant * Eastern District of Missouri

*

v. *

*

President Casinos, Inc., *

*

Debtor - Appellee *

_______________

Submitted: November 7, 2008

Filed: December 1, 2008

_______________

Before FEDERMAN, MAHONEY, and VENTERS, Bankruptcy Judges

FEDERMAN, Bankruptcy Judge

Creditor Alma Jackson appeals from the Bankruptcy Court’s1

 Order denying

her Motion for Relief from Order Pursuant to Rule 9024 of the Federal Rules of

Bankruptcy Procedure as to the Order Relating to Post Petition Personal Injury
2

 Fed. R. Civ. P. 60(b), made applicable to this bankruptcy case pursuant to Fed.

R. Bankr. P. 9024.

2

Claims Identified in Omnibus Objection dated May 30, 2007 (the “Rule 9024

Motion”). In sum, Jackson seeks relief from the Court’s denial of her post-petition

personal injury claim against the Debtor because she did not timely file certain

documents as required by Court Order. Because the Bankruptcy Court did not abuse

its discretion in finding that Jackson failed to demonstrate excusable neglect under

Rule 60(b),2

 we affirm.

FACTUAL BACKGROUND

On June 20, 2002, President Casinos, Inc. (“PCI”) and its wholly-owned

subsidiary, President Riverboat Casino-Missouri, Inc. (“PRC-MO”), and several other

affiliated companies (collectively, the “Debtors”) filed voluntary Chapter 11

bankruptcy petitions. The cases are being jointly administered, and the Debtors

continue to operate as debtors-in-possession. PCI serves as the Distribution Trustee

under a Distribution Trust established pursuant to the PRC-MO Chapter 11 Plan,

which became effective on December 20, 2006. In its role as Distribution Trustee,

PCI has the authority to, among other things, object to disputed claims against the

PRC-MO estate and prosecute or settle such objections. 

Jackson is the holder of a postpetition claim against PRC-MO based on an

alleged personal injury she sustained at PRC-MO’s premises (the “Jackson Claim”).

On March 22, 2007, PCI, in its role as Distribution Trustee, filed a First Omnibus

Objection to Administrative (Post-Petition) Claims filed Against President Riverboat

Casino-Missouri, Inc. (the “Omnibus Objection”). The Jackson Claim was among

those claims objected to in the Omnibus Objection, on the basis that PRC-MO denied

any liability for the claim. The parties do not dispute that the Jackson Claim was

subject to the Bankruptcy Court’s Order Establishing Mediation Procedures

Applicable to Personal Injury and Tort-Related Claims (the “Mediation Procedures
3

Order”), which required them to refer the underlying personal injury claim to

mandatory mediation. In compliance with the Mediation Procedures Order, on or

about March 22, 2007, PCI served Jackson with a Notice of Objection to Personal

Injury Claim and Notice of Proposed Mediator and Opportunity to Object (the

“Notice”), along with a copy of the Mediation Procedures Order, which, inter alia,

required Jackson to submit a Mediation Statement within forty-five days. 

On April 30, 2007, the Bankruptcy Court entered an Order on Omnibus

Objection to Administrative (Post-petition) Claims Filed Against President Riverboat

Casino-Missouri, Inc. (the “Omnibus Order”), which reiterated that Jackson’s Claim

was in mediation and that Jackson was required to file her Mediation Statement no

later than May 7, 2007, or risk dismissal of the Claim. When Jackson failed to submit

a Mediation Statement by the May 7, 2007 deadline, the Bankruptcy Court entered,

on May 30, 2007, an Order Relating to Post-Petition Personal Injury Claims

Identified in Omnibus Objection (the “PI Claims Order”) in which the Court

disallowed the Jackson Claim in its entirety for her failure to submit a Mediation

Statement and otherwise timely prosecute her claim against the estate. Jackson does

not dispute that her Mediation Statement was due by May 7, or that she failed to

comply with that deadline. 

On June 8, 2007, Jackson filed a timely Motion to Reconsider the PI Claims

Order (the “Motion to Reconsider”), stating briefly that her attorney, through

oversight, had failed to deliver a timely Mediation Statement to the mediator, that the

attorney “learned of the oversight upon returning from emergency appendectomy,”

and that the Mediation Statement had been hand-delivered to the mediator’s office on

June 4, 2007. PCI objected to the Motion to Reconsider. On July 10, 2007, the

Bankruptcy Court entered an Order denying the Motion to Reconsider. Jackson did

not appeal from the Order denying the Motion to Reconsider, or the PI Claims Order

denying her Claim.
3

 Watkins v. Lundell, 169 F.3d 540, 543-44 (8th Cir. 1999).

4

Rather, on August 29, 2007, Jackson filed the instant Rule 9024 Motion,

accompanied by an Affidavit of Jackson’s attorney, Michael McGlynn. In essence,

Jackson seeks relief from the PCI Claims Order and the Order denying the Motion to

Reconsider, and asks that she be allowed to file the Mediation Statement out of time,

based on excusable neglect under Rule 60(b).

 According to Mr. McGlynn’s Affidavit, he practices in a three-person law firm

where he is solely responsible for his own files and states that he “had no back-up to

catch the oversight,” apparently referring to his missing the deadline for filing the

Mediation Statement. He further states, “I had emergency appendectomy surgery at

Barnes Hospital, and the day I returned to the office I learned that an order was

entered striking the claim due to the failure to tender to the mediator the mediation

materials (medical records, bills, theory of the case).” He also says that he was

unaware of any concern by the mediator or attorney for the Debtor that the materials

had not been received, or of any request to strike the claim. McGlynn further states

that “[t]here was an oversight in that the date to present the materials to the mediator

was not calendared, and [he] was unaware of any concern until the day [he] returned

to [his] office from surgery.” He says that he immediately collected the materials and

hand-delivered them to the mediator that same day, June 4. 

PCI opposed the Rule 9024 Motion and, on July 3, 2008, the Bankruptcy Court

denied it. Jackson argues that the Bankruptcy Court erred in doing so.

STANDARD OF REVIEW

We review a determination to set aside a judgment under Rule 60(b) for abuse

of discretion.3
4

 Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004).

5

 United States v. Mosbrucker, 340 F.3d 664, 665 (8th Cir. 2003) (Rule 60(b)

provides for relief only under exceptional circumstances and is not intended to substitute

for a timely appeal) (citation omitted).

6

 Arnold v. Wood, 238 F.3d 992 (8th Cir. 2001) (denial of motion for relief from

judgment was not abuse of discretion where motion largely reasserted contentions made

in litigant’s earlier motions); Carpenters Dist. Council of Kansas City Pension Fund v.

Graceland Indus., Inc., 140 Fed. App. 637, 2005 WL 1907061 at *1 (8th Cir. 2005)

5

DISCUSSION

Rule 60(b) provides, in relevant part, that, on motion and just terms, the court

may relieve a party or its legal representative from a final judgment, order, or

proceeding for “mistake, inadvertence, surprise, or excusable neglect.” The Order

from which Jackson ultimately seeks relief is the PI Claims Order denying her Claim,

asserting that her attorney’s failure to timely file the Mediation Statement was a result

of excusable neglect. As the Debtor contends, however, Jackson had the opportunity

to argue that the neglect in filing the Mediation Statement was excusable when she

first moved for reconsideration of the PI Claims Order, and, therefore, this Rule 9024

Motion is an improper attempt to appeal from that Order or the Order denying her

Motion to Reconsider. An appeal of the denial of a Rule 60(b) motion does not raise

the underlying judgment for consideration and review and cannot substitute for a

timely appeal from that judgment.4

 If an alleged error could have been corrected by

appeal, a motion for reconsideration or relief must be made within the time for

appeal.5

 As a result, to the extent that Jackson contends that the Bankruptcy Court

should have allowed her to file her Mediation Statement out of time, she should have

raised that issue through a timely appeal of the Order denying her Motion to

Reconsider. Further, through her Rule 9024 Motion, Jackson simply expands upon

the same argument she made in the Motion to Reconsider the denial of her Claim –

i.e., that she should be allowed to file the Mediation Statement out of time due to her

attorney’s illness – which is another impermissible use of Rule 60(b).6

 As a result, the
(unpublished) (“The purpose of Rule 60(b) relief is not to afford the parties an

opportunity to reargue the merits of their case.”); F.D.I.C. v. United Pacific Ins. Co., 152

F.3d 1266, 1272 (10th Cir. 1998) (“Rule 60(b) is not available to allow a party merely to

reargue an issue previously addressed by the court when the reargument merely advances

new arguments or supporting facts which were available for presentation at the time of

the original argument.”) (citation and internal quotation marks omitted).

7

 Pioneer Investment Services Company v. Brunswick Associates L.P., 507 U.S.

380, 381, 113 S.Ct. 1489, 1490-91, 123 L.Ed.2d 74 (1993).

8

 Id. 507 U.S. at 394, 113 S.Ct. at 1497 (internal quotation marks omitted).

9

 In re Payless Cashways, Inc., 230 B.R. 120, 138 (B.A.P. 8th Cir. 1999) (citing

Pioneer, 507 U.S. at 395, 113 S.Ct. at 1489).

10 Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004).

6

Bankruptcy Court could have properly denied the Rule 9024 Motion on those

grounds.

Nevertheless, although the Bankruptcy Court did not need to address the merits

of the Rule 9024 Motion, the Court did so, finding that Jackson had not proven

excusable neglect in failing to file the Mediation Statement by the deadline. As

Jackson points out, “Congress plainly contemplated that the courts would be permitted

to accept late filings caused by inadvertence, mistake, or carelessness, not just those

caused by intervening circumstances beyond the party’s control.”7

 “[E]xcusable

neglect is understood to encompass situations in which the failure to comply with a

filing deadline is attributable to negligence.”8

 “The determination as to whether

neglect is excusable is an equitable one, taking into account all relevant circumstances

surrounding the party’s omission.”9

 However, relief under Rule 60(b) is an

extraordinary remedy.10 Factors to consider in this determination include (1) the

danger of prejudice to the debtor; (2) the length of the delay and its potential impact

on judicial proceedings; (3) the reason for the delay, including whether it was within
11 Id.

12 In re Gehl, 324 B.R. 756, 759 (Bankr. N.D. Iowa 2005).

13 Id. (citing Gibbons v. U.S., 317 F.3d 852, 855 (8th Cir. 2003)).

7

the reasonable control of the movant; and (4) whether the movant acted in good

faith.11 

In sum, the Bankruptcy Court found that granting the Rule 9024 Motion posed

no danger of prejudice to the Debtor because doing so would simply permit Jackson

to mediate her claim, which was the process that the Debtor preferred for the personal

injury claimants. The Court also found that the length of the delay, less than ninety

days from the entry of the PI Claims Order to the filing of the Rule 9024 Motion, was

minimal, and that Jackson had acted in good faith, all factors weighing in favor of

granting the Rule 9024 Motion. 

However, the Court also found that allowing Jackson to prevail on the Rule

9024 Motion by making essentially the same argument made in the Motion to

Reconsider would have a negative impact on judicial economy. In other words, the

Court found that it would be inherently unfair to the Debtor to give Jackson a second

try at arguing that the Jackson Claim should not be disallowed. 

Further, noting that the third factor, i.e., the reason for the delay, is the most

important factor considered by the courts,12 the Bankruptcy Court found Mr.

McGlynn’s explanation to be insufficient to warrant a finding of excusable neglect.

As Jackson suggests, and as the Bankruptcy Court said, illness of counsel may be

sufficient for a finding of excusable neglect, but the illness must be of “such character

and magnitude that counsel was both physically and mentally incapacitated during the

crucial period of time.”13
14 Indeed, Mr. McGlynn indicates in his Affidavit that he returned to his office

from the surgery around June 4, which was when he discovered that the Jackson Claim

had been disallowed and he hand-delivered the materials to the mediator. 

15 Id. (citing Gibbons v. U.S., 317 F.3d at 855).

16 739 F.2d 464 (9th Cir. 1984).

17 Accord Gibbons v. U.S., 317 F.3d at 855 (finding no excusable neglect, in part

because the attorney’s affidavit contained no specific information as to the nature of her

8

No one disputes that Mr. McGlynn had an emergency appendectomy at some

point around the relevant time period. However, even when he filed his Affidavit in

support of the Rule 9024 Motion, Mr. McGlynn gave the Bankruptcy Court no details

concerning his illness, such as the date when surgery occurred or how long he was

incapacitated as a result of the illness. He does not even say whether the

appendectomy occurred before or after the May 7 deadline for filing the Mediation

Statement.14 As the Bankruptcy Court said, Mr. McGlynn had forty-five days in which

to file the Mediation Statement, and “[t]he fact that [he] became ill does not excuse

the period of time when [he] was not ill.”15 Particularly given the lack of specificity

as to his illness, the Bankruptcy Court did not abuse its discretion in finding that Mr.

McGlynn failed to show that his illness constituted excusable neglect. 

Jackson cites Islamic Republic of Iran v. Boeing Company16 in support of her

argument that her attorney’s illness constitutes excusable neglect. In that case, the

Ninth Circuit affirmed the district court’s finding that counsel’s diarrhea, vomiting

and five-pound weight loss over a short period, coupled with the attorney’s secretary’s

illness, amounted to excusable neglect for failing to timely file a notice of appeal.

Jackson suggests that her attorney’s appendicitis is far more serious than the illness

described in that case. That may have been true, and, if so, the Bankruptcy Court may

have so found when initially presented with the Motion for Reconsideration, but Mr.

McGlynn provided the Bankruptcy Court with almost no information about his

illness.17 Moreover, Mr. McGlynn also concedes that his missing the deadline was,
illness, treatment, and/or rehabilitation).

18 Hunter v. Underwood, 362 F.3d at 475.

19 See, e.g., Gibbons v. U.S., 317 F.3d at 855 (finding no excusable neglect, in part

because the attorney failed to take appropriate measures for the administration of her

cases upon her realization that her illness would preclude her from personally attending to

them); InvisioNet Computer Serv., Inc. v. ECS Funding LLC, 288 B.R. 163, 165-66 (D.

Me. 2002) (finding no excusable neglect when counsel failed to calendar a deadline).

9

at least in part, due to an “oversight,” namely, that he had not calendared it. In view

of the fact that relief under Rule 60(b) is an extraordinary remedy,18 we cannot say that

the Bankruptcy Court’s determination that Mr. McGlynn’s explanation did not meet

the standard for excusable neglect was an abuse of discretion.19

CONCLUSION

For the foregoing reasons, the Bankruptcy Court’s denial of Jackson’s Rule

9024 Motion was not an abuse of the Court’s discretion. The Order denying

Jackson’s Motion for Relief from Order Pursuant to Rule 9024 of the Federal Rules

of Bankruptcy Procedure as to the Order Relating to Post Petition Personal Injury

Claims Identified in Omnibus Objection Dated May 30, 2007, is, therefore,

AFFIRMED.