1 Hann v. State Treasurer, E.D. Mich. No. 04-70977 (Rosen, J.) (dismissing based on

Plaintiff’s improper removal from state court); Hann v. State of Michigan, E.D. Mich. No. 05-

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GARY S. HANN, No. 08-14565

Plaintiff-Appellant, District Judge Nancy G. Edmunds

v. Magistrate Judge R. Steven Whalen

STATE OF MICHIGAN and

LINDSAY MOYER,

Defendants-Appellees.

 /

REPORT AND RECOMMENDATION

Plaintiff Gary S. Hann filed this case as a bankruptcy appeal. Before the Court are

(1) Defendants’ Motion to Dismiss [Docket #7] and (2) Plaintiff’s “Motion to Remand to

BAP or to Judge O’Meara” [Docket #13], which have been referred for Report and

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below,

I recommend that Defendant’s motion [Docket #7] be GRANTED and that Plaintiff’s

motion [Docket #13] be DENIED.

I. BACKGROUND

Plaintiff is a former prison inmate who was sentenced to a prison term of 2 to 20

years following his conviction in state court of possession of child sexually abusive

material and using the internet to commit a crime against a minor. According to the

Michigan Department of Corrections Offender Tracking Information System (OTIS),

Plaintiff was paroled on February 27, 2008. He has filed numerous cases in this Court and

in Bankruptcy Court, as well as state court.1

 The common thread in all of these cases is

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71347 (Borman, J.) (dismissing claims related to SCFRA and Plaintiff’s IRA, based on RookerFeldman doctrine); Hann v. State Treasurer, E.D. Mich. No. 07-13687 (Edmunds, J.) (accepting

my Report & Recommendation that bankruptcy appeal be dismissed under Rooker-Feldman, and

as frivolous); In re Gary S. Hann, E.D. Mich. No. 08-14516 (Edmunds, J.)(bankruptcy appeal,

pending); Hann v. State of Michigan (present case).

2

 A copy of Judge Rhodes’ order is appended to the Notice of Appeal.

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Plaintiff’s contention that the State of Michigan improperly sought payment from him

under the State Correctional Facility Reimbursement Act (SCFRA), M.C.L. § 800.401,

et.seq., as well as other fines associated with his conviction and incarceration.

On October 12, 2005, Plaintiff filed a Chapter 7 petition in the United States

Bankruptcy Court for the Eastern District of Michigan, which was docketed under

Bankruptcy Court No. 05-79798. The present appeal concerns Adversary Case No. 08-

04587, which Plaintiff filed in Bankruptcy Court on May 20, 2008. Bankruptcy Document

#24. On October 7, 2008, Bankruptcy Judge Rhodes granted the present DefendantsAppellants’ motion for summary judgment, and dismissed the adversary proceeding.2

Plaintiff states that on October 22, 2008, he filed a motion for reconsideration of

Judge Rhodes’ October 7th order in Bankruptcy Court. The Bankruptcy Court docket

sheet in case no. 05-79798 does not reflect that such motion was filed or ruled upon;

however, Plaintiff has attached to his response, as Exhibit 1, a copy of his motion for

reconsideration, time-stamped October 22, 2008, 3:59 p.m., by the Bankruptcy Court. 

The Bankruptcy Court has closed the case.

Plaintiff filed his notice of appeal on October 23, 2009. In their motion to dismiss,

Defendants argue that this Court lacks jurisdiction to hear the appeal, because the notice

of appeal was filed outside the 10-day time limit set forth in Bankruptcy Rule 8002.

In his motion to remand, the Plaintiff asks that the case either be remanded to the

Bankruptcy Appellate Panel, or transferred to Judge O’Meara for purposes of hearing this

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appeal. The basis for this request is unclear; however, at oral argument on this motion on

June 11, 2009, Plaintiff stated that he sought remand to Bankruptcy Court in order to

obtain discovery.

II. STANDARD OF REVIEW

Bankruptcy Rule 8002(a) provides that a “notice of appeal shall be filed with the

clerk within 10 days of the date of the entry of the judgment, order or decree appealed

from.” That time may be extended only upon written motion filed before the time for

filing a notice of appeal has expired. Bank.R. 8002(c)(1) and (2). The 10-day period

includes intermediate weekends and legal holidays. Bank.R. 9006(a). The last day of the

period is counted unless it falls on a weekend day or a legal holiday. Id. A “filing is not

timely unless the papers are received by the clerk within the time fixed for filing....” 

Bank.R. 8008(a).

The 10-day rule for filing a notice of appeal is jurisdictional, and “failure to file a

timely notice requires an appeal be dismissed for lack of jurisdiction.” In re Dow

Corning Corp., 255 B.R. 445, 465 (E.D. Mich. 2000) (citing In re LBL Sports Ctr., Inc.,

684 F.2d 410, 412 (6th Cir. 1982)). The rule has been strictly construed, requiring strict

compliance with its terms. Hotel Syracuse, Inc. v. City of Syracuse Indus. Dev. Agency (In

re Hotel Syracuse, Inc.), 154 B.R. 13, 15 (N.D.N.Y.1993). “The Sixth Circuit has noted

that although a person proceeding pro se may not fully understand the rules or procedure,

he or she is still required to comply with the rules and that a pro se status does not exempt

a person from complying with the rules.” In re Dow Corning, supra, 255 B.R. at 466

(citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.1991)).

The filing of a timely motion for reconsideration under Bank.R. 9023 (which is

treated as a motion to alter or amend judgment under Fed.R.Civ.P. 59(e)) tolls the time

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3

 Judge Rhodes signed the judgment on October 7, 2008, but the docket entries

contain a notation that it was entered the following day, October 8th. Because Rule

8002(a) provides that the 10-day period for filing a notice of appeal runs from the entry of

judgment, I will compute the time from October 8th.

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for filing a notice of appeal, and the full 10-day period would begin to run from the entry

of an order disposing of a timely motion for reconsideration. Creative Data forms, Inc. v.

Pennsylvania Minority Business Development Authority, 72 B.R. 619, 621-22 (E.D. Pa.

1985). Under Bank.R 9023 and Fed.R.Civ.P. 59(e), a motion for reconsideration “must

be filed no later than 10 days after the entry of the judgment.”

III. DISCUSSION

A. Defendants’ Motion to Dismiss [Docket #7]

The Bankruptcy Court entered judgment in favor of the Defendants on October 8,

2008.3

 Plaintiff filed his notice of appeal on October 23, 2008, 15 days later, or five days

late. Where, as here, the time limit for filing is a jurisdictional prerequisite, In re LBL

Sports Ctr., Inc., supra, a miss is as good as a mile. Plaintiff’s appeal is jurisdictionally

barred.

Jurisdiction is not salvaged by the fact that Plaintiff may have filed a motion for

reconsideration of Judge Rhodes’ order, because that motion itself was untimely.

Although the Bankruptcy Court docket entries do not reflect that a motion for

reconsideration was ever filed, Plaintiff’s claim that he filed such a motion on October 22,

2008 is supported by the time-stamped copy attached to his response. However, even

assuming a valid filing, the October 22nd date is still beyond the 10-day limit for

requesting reconsideration of a judgment entered on October 8, 2008.

There is no question that Plaintiff’s motion for reconsideration, which is appended

to his response to this motion as Exhibit 2, was based on Bank.R. 9023 and Fed.R.Civ.P.

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 At oral argument, Plaintiff argued that as a prison inmate, the filing should have

been deemed effective on the date he tendered it to prison authorities for mailing. This is

known as the “prisoner mailbox rule.” See Houston v. Lack, 487 U.S. 266, 274, 108 S.Ct.

2379, 101 L.Ed.2d 245 (1988). However, this rule does not apply because Plaintiff was

released on parole on February 27, 2008, and was thus not in custody when Judge Rhodes

granted summary judgment to the Defendants in October of 2008. Therefore, the

Plaintiff’s motion is deemed filed on the date it was received by the Court Clerk. Bank.R.

8008(a).

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59, and not on Bank.R. 9024, which incorporates Fed.R.Civ.P. 60(b). The latter must be

filed “within a reasonable time,” not to exceed one year if based on the first three of the

six grounds set forth in the Rule. However, in his motion for reconsideration, Plaintiff

argued “the state’s complete denial of due process,” an argument directed at the

underlying judgment that he now appeals. “[M]otions for reconsideration have

traditionally been treated as motions to alter or amend under Rule 59(e), Fed.R.Civ.P., if

the motion draws into question the correctness of the trial court’s decision.” In re Curry

and Sorensen, Inc., 57 B.R. 824, 827 (9th Cir. BAP, 1986) (citing In re Branding Iron

Steak House, 536 F.2d 299, 301 (9th Cir. 1976)). Plaintiff further argued in his motion for

reconsideration, albeit incorrectly, that the motion was being filed within the 10-day

period applicable to Rule 59 motions, if weekends and holidays were excluded.4

Considering the nature of the relief sought in the motion for reconsideration, as well as

the Plaintiff’s express intent, it can only be construed as a Rule 59(e) motion to alter or

amend the judgment. See Creative Data Forms, Inc. v. Pennsylvania Minority Business

Development Authority, 72 B.R. 619, 622 (E.D. Pa. 1985) (nature of motion and intent of

the moving party, not nomenclature, determines whether a motion is brought under Rule

59 or Rule 60).

Finally, even if Plaintiff’s motion for reconsideration were somehow construed as

being brought under Rule 60(b), “[a] motion for relief on one or more of the six grounds

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stated in 60(b) for relief from a final judgment does not affect the finality of the judgment,

and does not toll the time for appeal from the final judgment.” Creative Data Forms, 72

B.R. at 621-22, quoting 7 Moore's Federal Practice, ¶ 60-29, at 60-327 (2d ed. 1981). 

In other words, any way you look at it, the notice of appeal was untimely, and this

Court is therefore without jurisdiction.

B. Plaintiff’s Motion to Remand [Docket #17]

Because the Plaintiff failed to timely file a notice of appeal, this Court does not

have jurisdiction to grant any relief, including a remand to the Bankruptcy Court. In

addition, any such remand–including a remand for “discovery,” as Plaintiff requested at

oral argument–would be futile. The bankruptcy case is closed, and Plaintiff failed to

timely seek reconsideration of the judgment at issue in this case.

IV. CONCLUSION

For these reasons, I recommend that Defendants’ Motion to Dismiss [Docket #7]

be GRANTED, and the appeal DISMISSED. I further recommend that Plaintiff’s Motion

to Remand [Docket #13] be DENIED.

Any objections to this Report and Recommendation must be filed within ten (10)

days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich.

LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard

v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947

(6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with

specificity will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit

Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D.

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Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within ten (10) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than twenty 

(20) pages in length unless by motion and order such page limit is extended by the 

court. The response shall address specifically, and in the same order raised, each issue

contained within the objections.

S/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: June 19, 2009

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys

and/or parties of record by electronic means or U.S. Mail on June 19, 2009.

S/G. Wilson 

Judicial Assistant

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