13-2969; 13-3005

In re Mark IV Indus., Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New

York, on the 17th day of March, two thousand fourteen.

PRESENT:

REENA RAGGI,

DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges.

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IN RE MARK IV INDUSTRIES, INC.,

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GERTRUDE CORETTA FENNELL 

HAMILTON,

Appellant,

v. Nos. 13-2969-bk

13-3005-bk

MARK IV INDUSTRIES, INC.,

Appellee.

*

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FOR APPELLANT: Gertrude Corretta Fennell Hamilton, pro se, Walterboro, South

Carolina.

*

 The Clerk of Court is directed to amend the official captions as shown above.
FOR APPELLEE: James E. Ivester, Skadden, Arps, Slate, Meagher & Flom LLP,

New York, New York.

Appeals from judgments of the United States District Court for the Southern District

of New York (George B. Daniels, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgments of the district court entered on September 25, 2012, and

March 5, 2013, are AFFIRMED. 

Pro se appellant Gertrude Coretta Fennell Hamilton appeals from adverse judgments

entered by the district court in two bankruptcy appeals docketed in the district court as Nos.

11-Civ-6758 and 12-Civ-3210, as well as from the denial of her motions for reconsideration

in each appeal.1

 We assume the parties’ familiarity with the underlying facts and history of

the prior proceedings, which we reference only as necessary to explain our decision to affirm.

1. Dismissal of the Bankruptcy Appeals

“An appeal from a district court’s review of a bankruptcy court ruling is subject to

plenary review.” In re Halstead Energy Corp., 367 F.3d 110, 113 (2d Cir. 2004). We review

a bankruptcy court’s conclusions of law de novo and its findings of fact under the clearly

erroneous standard. See In re Vebeliunas, 332 F.3d 85, 90 (2d Cir. 2003).

1

 While Hamilton’s notices of appeal to this court might be construed only to challenge

denial of reconsideration, we construe them liberally also to challenge the district court

rulings for which reconsideration was sought. See Marvin v. Goord, 255 F.3d 40, 42 n.1

(2d Cir. 2001).

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a. No. 11-Civ-6758

In this bankruptcy appeal, Hamilton contested the expungement of her proofs of

claim. The district court correctly dismissed this challenge as untimely. Under the

Bankruptcy Rules, a notice of appeal “shall be filed with the clerk within 14 days of the date

of the entry of the judgment, order, or decree appealed from,” Fed. R. Bankr. P. 8002(a),

although “[t]he bankruptcy judge may extend the time for filing the notice of appeal by any

party,” id. 8002(c)(1). “[T]he time limit contained in Rule 8002(a) is jurisdictional, and . . .

in the absence of a timely notice of appeal in the district court, the district court is without

jurisdiction to consider the appeal, regardless of whether the appellant can demonstrate

excusable neglect.” In re Siemon, 421 F.3d 167, 169 (2d Cir. 2005) (internal quotation

marks omitted). Without procuring any extension, Hamilton filed her notice of appeal from

the June 2010 bankruptcy court order disallowing her proofs of claim in August 2011, more

than a year beyond the fourteen-day jurisdictional deadline. This part of the appeal was,

thus, untimely and properly dismissed. 

Hamilton also appealed to the district court the bankruptcy court’s orders denying her

motions for reconsideration. “A bankruptcy court’s denial of a motion to reconsider a

disallowed claim is a discretionary decision, reviewed under the familiar and deferential

abuse-of-discretion standard.” In re Coudert Bros. LLP, 673 F.3d 180, 186 (2d Cir. 2012). 

The bankruptcy court did not abuse its discretion when it denied Hamilton’s motions to

reconsider its disallowance of her proofs of claim. Neither motion presented new issues, but,

rather, continued to argue the merits of the claims raised in her South Carolina litigation. 

Accordingly, the district court correctly denied this part of her appeal.

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b. No. 12-Civ-3210

Separately, Hamilton appealed to the district court the bankruptcy court’s case closing

order. The district court dismissed for lack of standing. We have adopted “the general rule

. . . that in order to have standing to appeal from a bankruptcy court ruling, an appellant must

be a person aggrieved—a person directly and adversely affected pecuniarily by the

challenged order of the bankruptcy court.” In re DBSD N. Am., Inc., 634 F.3d 79, 89 (2d

Cir. 2011) (internal quotation marks omitted). Pursuant to this rule, we generally grant

standing to “creditors . . . appeal[ing] orders of the bankruptcy court disposing of property

of the estate because such orders directly affect the creditors’ ability to receive payment of

their claims.” Id. (alteration in original and internal quotation marks omitted). Hamilton,

however, cannot establish standing as a creditor of the Mark IV estate because the

bankruptcy court disallowed her proofs of claim and her appeal of that decision was

untimely. Absent status as a creditor, there is no basis for concluding that Hamilton is

“directly and adversely affected pecuniarily” by the bankruptcy court’s case closing order. 

Hamilton’s standing in this context is fundamentally contingent on the outcome of her South

Carolina litigation, which, having been fully litigated in Mark IV’s favor, necessarily

precludes standing to challenge the case closing order. 

2. District Court Reconsideration Motions

Whether Hamilton’s motion for reconsideration of the district court’s orders was

properly entertained pursuant to Fed. R. Civ. P. 59 or Fed. R. Bankr. P. 8015, see EnglishSpeaking Union v. Johnson, 353 F.3d 1013, 1020 (D.C. Cir. 2004) (favoring Rule 8015);

4
Butler v. Merchants Bank & Trust Co., 2 F.3d 154, 155 (5th Cir. 1993) (same); but see In re

Wilkinson, 923 F.2d 154, 156 (10th Cir. 1991) (permitting either Rule 59 or Rule 8015

motion to toll time for filing bankruptcy appeal notice)—a matter not decided by this

court—and whether the standard of review is abuse of discretion, see Schwartz v. Liberty

Mut. Ins. Co., 539 F.3d 135, 150 (2d Cir. 2008) (reviewing denial of Rule 59(e) motion for

abuse of discretion); In re Fowler, 394 F.3d 1208, 1214–15 (9th Cir. 2005) (reviewing denial

of Rule 8015 motion for abuse of discretion), or higher, Hamilton’s appeal fails for

substantially the reasons stated by the district court in its well-reasoned order denying

reconsideration.

We have considered Hamilton’s remaining arguments and find them to be without

merit. Accordingly, for the reasons stated above, we AFFIRM the judgment of the district

court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court

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