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FILED

APR 04 2014

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. SC-13-1185-PaJuKu 

)

JUVELYN SMITH, ) Bankr. No. 08-09001-LT

)

Debtor. ) Adv. No. 09-90177-LT

______________________________)

)

MICHAEL SMITH, )

)

Appellant, )

)

v. ) M E M O R A N D U M1

)

JUVELYN SMITH, )

)

Appellee. )

______________________________)

Submitted Without Oral Argument2

Filed - April 4, 2014

Appeal from the United States Bankruptcy Court

for the Southern District of California

Honorable Laura S. Taylor, Chief Bankruptcy Judge, Presiding

 

Appearances: Appellant Michael Smith, pro se, on the brief.

 

Before: PAPPAS, JURY, and KURTZ, Bankruptcy Judges.

FILED

APR 04 2014

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

1 This disposition is not appropriate for publication.

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value.

See 9th Cir. BAP Rule 8013-1.

2 After notice to the parties, in an order entered on

December 10, 2013, the Panel unanimously determined this appeal

was suitable for submission on the briefs and record without oral

argument, pursuant to Fed. R. Bankr. P. 8012.
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Michael Smith (“Appellant”) appeals the bankruptcy court’s

order denying his motion for an extension of time to file an

appeal. We AFFIRM.

FACTS AND PROCEDURAL HISTORY

Chapter 73 Debtor Juvelyn Smith (“Debtor”) and Appellant

were once husband and wife. The termination of that relationship

spawned over a decade of contentious litigation. 

On September 15, 2008, Debtor filed a bankruptcy petition. 

The case proceeded unremarkably, a discharge was entered in

Debtor’s favor and, on December 19, 2008, the case was closed. 

On February 23, 2009, Appellant filed a motion to reopen the

bankruptcy case so that he could commence an adversary proceeding

against Debtor to contest the dischargeability of a debt he

alleged was owed to him. His motion was granted, and the

bankruptcy case was reopened on March 17, 2009.

On April 28, 2009, Appellant filed an adversary complaint;

he amended it on July 26, 2010. In the amended complaint,

Appellant alleged four claims for relief against Debtor which, he

asserted, gave rise to nondischargeable debts: 1) intentional

tort (generally, tortious interference with his parent/child

relationship); 2) willful and malicious injury; 3) conspiracy;

and 4) immigration fraud. Debtor filed an answer on

September 28, 2010, followed by a motion to dismiss on January 3,

3 Unless otherwise indicated, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1532, all

Rule references are to the Federal Rules of Bankruptcy Procedure,

Rules 1001–9037, and all Civil Rule references are to the Federal

Rules of Civil Procedure 1–86.

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2011. Because the motion asked the bankruptcy court to consider

matters outside of the pleadings, the bankruptcy court treated it

as a motion for summary judgment. Following a hearing on the

motion, the bankruptcy court granted summary judgment to Debtor

on the fourth claim alleged in Appellant’s amended complaint. 

After providing Appellant a further opportunity to present

evidence regarding the other three claims, the bankruptcy court

on January 26, 2012, denied Debtor’s motion for summary judgment

on the first three claims to the extent that those claims arose

between March 21, 2002, and March 21, 2003, or that they were

based on Debtor’s alleged statements regarding child abuse by

Appellant. Proceedings would continue as to the first three

claims not based on those excluded issues. 

Appellant filed his own motion for summary judgment on

September 16, 2011. The bankruptcy court denied the motion as to

all counts in the complaint and granted summary judgment in favor

of Debtor as to the fourth count in an order entered on

October 27, 2011. All of Appellant’s remaining claims were then

set for trial. After hundreds of pages of documents were

submitted by Appellant, and numerous extensions of time were

granted, the bankruptcy court ultimately ruled without a hearing

that summary judgment should be granted in favor of Debtor on the

remaining counts. Subsequent to entry of the order, Appellant

was given an additional ten days to request oral argument, which

he did. Following oral argument, a judgment dismissing the

adversary proceeding was entered on February 22, 2013.

Appellant filed a notice of appeal concerning the judgment

on March 18, 2013 (the “SJ Appeal”). After notice to Appellant,

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the Panel dismissed the appeal as untimely on May 6, 2013.

On the same date as the SJ Appeal notice of appeal was

filed, Appellant also filed a motion to extend time to file the

appeal.4 On April 3, 2013, the bankruptcy court entered an order

denying the motion. Appellant filed the notice commencing this

appeal on April 17, 2013.5

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C.

§§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C.

§ 158(a)(1).

ISSUE

Whether the bankruptcy court abused its discretion in

denying Appellant’s motion for extension of time to file a notice

4 In the order dismissing the SJ Appeal, the Panel

acknowledged that Appellant had filed a motion for extension of

time in which to file the SJ Appeal, that the motion had been

denied by the bankruptcy court, and that he had filed this

current appeal. The Panel noted that “[i]f the order denying the

extension motion is reversed on appeal, the dismissal of BAP

Appeal No. SC-13-1122 will be vacated and BAP Appeal No.

SC-13-1122 will be reinstated.” Order of Dismissal, BAP Case

No. 13-1122, May 6, 2013, at 2 n.1.

5 On January 28, 2014, Appellant filed a request asking

that the Panel take judicial notice of (1) a book written by

Stephen Baskerville, TAKEN INTO CUSTODY: THE WAR AGAINST FATHERS,

MARRIAGE AND THE FAMILY (Cumberland House, 2007), and (2) pleadings

from a lawsuit filed by attorney Cole Stuart in the U.S. District

Court in San Diego. Appellant asserts that these documents

“address the operation of the state family/juvenile courts and

[are] applicable to this court for an understanding of what

happened in the underlying juvenile court case.” Request for

Judicial Notice, at 2. These materials are not relevant to

issues in this appeal, and Appellant’s request for judicial

notice is DENIED.

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of appeal.

STANDARD OF REVIEW

We review a bankruptcy court's denial of a motion for an

extension of time to file a notice of appeal for abuse of

discretion. Warrick v. Birdsell (In re Warrick), 278 B.R. 182,

184 (9th Cir. BAP 2002) (citing Nugent v. Betacom of Phoenix,

Inc. (In re Betacom of Phoenix, Inc.), 250 B.R. 376, 379 (9th

Cir. BAP 2000)). This standard has two parts. First, we

consider whether the bankruptcy court applied the correct legal

standard; and second, we must decide whether the court's factual

findings supporting the legal analysis were clearly erroneous. 

Alakozai v. Citizens Equity First Credit Union (In re Alakozai),

499 B.R. 698 (9th Cir. BAP 2013) (citing United States v.

Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc).

DISCUSSION

A.

We begin by acknowledging the arguments made by Appellant in

his briefs. Generally speaking, those arguments focus, not on

whether the bankruptcy court erred by denying his request for an

extension of time to appeal, but instead, on the merits of the

allegations contained in his adversary complaint, as well as his

contentions that the bankruptcy court erred in depriving him of a

trial concerning those issues. Of course, the proper forum for

exploration of those issues was in the SJ Appeal which, as noted

above, was ultimately dismissed as untimely. 

We decline to consider Appellant’s arguments or to express

any opinion concerning those issues. The only question that this

Panel may properly address is whether the bankruptcy court erred

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when it denied Appellant’s request for an extension of time in

order to file the SJ Appeal. 

B.

To be timely, a notice of appeal must be filed within

fourteen days of entry of the bankruptcy court’s judgment or

order. Rule 8002(a). “The timely filing of a notice of appeal

is mandatory and jurisdictional.” Key Bar Invs., Inc. v. Cahn

(In re Cahn), 188 B.R. 627, 630 (9th Cir. BAP 1995) (citing

Browder v. Dir., Dep't of Corr. of Ill., 434 U.S. 257, 264 (1978)

and Slimick v. Silva (In re Slimick), 928 F.2d 304, 306 (9th

Cir.1990)). Hence, “[f]ailure to file [a notice of appeal]

within the time limit divests the appellate court of

jurisdiction.” Preblich v. Battley, 181 F.3d 1048, 1056 (9th

Cir. 1999). 

A bankruptcy court may extend the time for filing the notice

of appeal, provided the party requesting the extension files a

motion to do so “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.” 

Rule 8002(c)(2).6

6 The full text of Rule 8002(c)(2) reads:

(c) Extension of Time for Appeal. . . . (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 21 days after the

expiration of the time for filing a notice of appeal

continue...

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In this case, the judgment Appellant sought to appeal was

entered on February 22, 2013. As such, the deadline by which he

needed to file a notice of appeal was March 8, 2013. 

Rule 8002(a). Having missed that deadline, Appellant timely

sought an extension of time in which to file a notice of appeal. 

According to Rule 8002(c)(2), the bankruptcy court could grant

Appellant an extension of the usual fourteen-day appeal time only

if he demonstrated to the court that his delayed filing was the

result of excusable neglect. 

The term “excusable neglect” was definitively interpreted by

the United States Supreme Court in Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993). In that

case, a creditor failed to file a proof of claim before the

court-ordered bar date in a chapter 11 bankruptcy case. When the

late-filed claim was challenged, the Court held that “excusable

neglect,” as provided under Rule 9006(b)(1),7 is not limited to

situations where the delay in filing is caused by circumstances

beyond the control of the party filing the claim. The Court

looked to the dictionary definition of “neglect” and reasoned

that:

6...continue

may be granted upon a showing of excusable neglect.

7 Rule 9006 governs computing and extending time limits

under the Bankruptcy Rules in general, and Rule 9006(b)(1)

controls the bankruptcy court’s general power to enlarge those

limits, including where a party seeks an extension of a

“specified period . . . where the failure to act was the result

of excusable neglect.” As discussed below, the Supreme Court’s

analysis of the meaning of the term “excusable neglect” in

Pioneer is therefore applicable here.

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Congress plainly contemplated that the 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. at 388. Moreover:

Because Congress has provided no other guidelines for

determining what sorts of neglect will be considered

“excusable,” we conclude that the determination is at

bottom an equitable one, taking account of all relevant

circumstances surrounding the party’s omission.

Id. at 395.

The Ninth Circuit has applied the teachings of Pioneer to

requests for extensions of time to file appeals. See Pincay v.

Andrews, 389 F.3d 853, 858 (9th Cir. 2004). The Pincay court

articulated the factors a trial court should consider in

determining whether to grant or deny an extension of time to file

an appeal: (1) the danger of prejudice to the non-moving party;

(2) the length of 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 moving party’s conduct was in good faith. Pincay, 389 F.3d

at 855; see also Pioneer, 507 U.S. at 395.

C.

In this case, in reviewing, but rejecting, Appellant’s

request for an extension of time to appeal, the bankruptcy court

examined each of the relevant elements developed by the appellate

courts, mindful that the determination was “at bottom an

equitable one, taking into account all relevant circumstances

surrounding the party’s omission.” Order at 1, April 3, 2013

(citing Pioneer, 507 U.S. at 395). 

As to the potential for prejudice to the Debtor, the

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bankruptcy court found, “Ms. Smith has been delayed for years in

obtaining the fresh start she was otherwise entitled to under the

Bankruptcy Code. The fact that this follows well over a decade

of other litigation with Mr. Smith in the Family Court

underscores that the resumption of litigation, that was concluded

when Mr. Smith failed to timely appeal may have profoundly

negative consequences.” Order at 2. The bankruptcy court also

noted that, during the pendency of the litigation, Appellant had

expressed a willingness to settle his claims against Debtor for a

token award of $1, and thus, “the prejudice to [Appellant] cannot

be deemed more significant than the detriment to [Debtor] if he

is willing to settle for a dollar.” Order at 1. We agree with

the bankruptcy court’s conclusion that significant prejudice may

result to the Debtor if an extension to appeal were granted to

Appellant under these circumstances. 

As to the length of Appellant’s delay in seeking to appeal,

the bankruptcy court found that factor was either neutral, or

balanced slightly in favor of Appellant and granting an

extension. Order at 2.

The bankruptcy court determined that Appellant’s reason for

delay in seeking to appeal, i.e., his attempt to obtain a token

settlement, was not an appropriate basis for failing to file a

timely appeal. The court reasoned, “[Appellant] knew at all

times when the appeal period ended. [Appellant] is an experienced

litigant who has litigated repeatedly in state and federal

court. . . . There is not a shred of evidence that [Appellant]

was unable to timely appeal; he simply chose not to.” Order at

3. The court concluded that this factor “balances strongly

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against extending the time limit.” Id. We agree.

Finally, concerning Appellant’s good faith, the bankruptcy

court expressed reluctance to “put fuel on the fire” by a bad

faith ruling. Again, we defer to the bankruptcy court’s finding

in this respect based on its long acquaintance with the parties

and familiarity with this litigation.

The bankruptcy court concluded that, in its view, two of the

four Pincay/Pioneer factors favored or strongly favored denying

Appellant’s motion, and that the other two factors were neutral. 

The court also observed that Appellant’s pro se status would not

change its analysis. Although he is not an attorney, Appellant

has apparently engaged in litigation in both federal and state

court for thirteen years and, in the bankruptcy court’s words,

“is an exceptionally experienced litigator . . . [and the] Court

has absolutely no doubt based on its experience with this case,

and its discussions at the last hearing that [Appellant] was

capable of filing a timely appeal, but chose not to do so.” 

Order at 3.

We are satisfied that the bankruptcy court applied the

correct legal rule in analyzing Appellant’s request for an

extension of time to appeal. As noted, in a thoughtful decision,

it identified and applied the Pioneer/Pincay factors in analyzing

whether Appellant had shown his delay in filing the notice of

appeal was the result of excusable neglect for purposes of

Rule 8002(c). All of the bankruptcy court’s factual findings

were supported by the record; none were clearly erroneous. In

addition, the bankruptcy court’s reasons for its decision are

well-founded based on the facts and circumstances in this case,

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and its assessment of the weight to attribute to each of the

applicable factors was reasonable. Applying the required

deferential standard of review, we conclude that the bankruptcy

court did not abuse its discretion in denying Appellant’s motion

for extension of time to file the appeal. 

CONCLUSION

We AFFIRM the order of the bankruptcy court.

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