                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2006

In Re:Amer Metrocomm
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5572




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Recommended Citation
"In Re:Amer Metrocomm " (2006). 2006 Decisions. Paper 704.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/704


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CPS-258                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 05-5572
                                 ________________

               IN RE: AMER METROCOMM CORPORATION, et al.,
                                      Debtors


                                  THOMAS ABRAMS,
                                            Appellant

                     ____________________________________

                   On Appeal From the United States District Court
                              For the District of Delaware
                                (D.C. Civ. No. 04-1372)
                    District Judge: Honorable Joseph J. Farnan, Jr.
                   _______________________________________


          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   June 29, 2006

           Before: BARRY, SMITH AND NYGAARD, CIRCUIT JUDGES

                                (Filed: July 24, 2006)


                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

      Thomas Abrams appeals from the District Court’s order dismissing his appeal

from Bankruptcy Court as untimely. Because we determine that the appeal is lacking in
arguable legal merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).

      Until 1998, Abrams was employed by debtor American MetroComm as a

paralegal. After being discharged, Abrams filed suit under the Louisiana Whistle-Blower

Act, LA. REV. STAT. ANN. § 23:967, in the Civil District Court for the Parish of Orleans.

Abrams and American MetroComm eventually settled the case and, on September 11,

2000, a Louisiana state court judge enforced the settlement agreement and dismissed

Abrams’ claims with prejudice.

      On August 16, 2000, American MetroComm filed a voluntary petition for relief

under Chapter 11 in the United States Bankruptcy Court for the District of Delaware. In

January of 2001, Abrams, acting pro se, filed a proof of claim for $100,000 based on his

Louisiana state court suit. The Trust Administrator, AMC Liquidating Trust (“AMC”),

objected to the claim and moved for summary judgment. AMC argued that Abrams’

claim was barred by the Louisiana state court settlement. On December 15, 2003, the

Bankruptcy Court granted AMC’s motion.

      On May 18, 2004, Abrams appealed the Bankruptcy Court’s order to the District

Court for the District of Delaware. In the District Court, AMC filed a motion to dismiss

Abrams’ appeal, arguing that Abrams’ notice of appeal was untimely. The District Court

granted the motion and Abrams timely appealed.

      We have appellate jurisdiction pursuant to 28 U.S.C. § 158(d). Having granted

Abrams leave to proceed in forma pauperis on appeal, we must now determine whether

his appeal should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). An appeal may be

                                            2
dismissed under § 1915(e)(2)(B) if it has no arguable basis in law or fact. Neitzke v.

Williams, 490 U.S. 319, 325 (1989). Whether an appeal from the bankruptcy court to a

district court is timely is a question of law which we review de novo. Shareholders v.

Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997).

        Pursuant to Federal Rule of Bankruptcy Procedure 8002(a), a notice of appeal

must be filed within ten days of the judgment or order which is appealed. The Federal

Rules of Bankruptcy Procedure contemplate situations where Rule 8002(a)’s deadline

cannot be met. Certain post-judgment motions, if timely, will extend the time to file a

notice of appeal. FED. R. BANKR. P. 8002(b). And Rule 8002(c) provides for an extra

twenty-day period when a party’s failure to file a timely notice of appeal is due to

excusable neglect. A request for such an extension of time “must be made by written

motion . . . filed not later than 20 days after the expiration of the time for filing a notice of

appeal.” FED. R. BANKR. P. 8002(c)(2). After twenty days have passed from the

expiration of the time to file a notice of appeal, an assertion of excusable neglect will not

serve to extend period for filing an appeal. Sound Radio, Inc., 109 F.3d at 879.

       Applying these rules, it is clear that Abrams’ appeal was untimely. Abrams filed

no post-judgment motions in the Bankruptcy Court. Abrams also did not file a motion

under Rule 8002(c) for an extension of time. Further, since Abrams’ notice of appeal was

filed more than five months after the entry of the Bankruptcy Court’s order, even if his

failure to appeal was due to excusable neglect, it was too late for him to benefit from any

extension under Rule 8002(c).

                                               3
       Abrams argues that he should be excused from Rule 8002(a)’s deadline for filing a

notice of appeal because he was called away for a family emergency and did not receive

the Bankruptcy Court’s order until just before May 18. Further, he argues that the

deadlines laid out in the Bankruptcy Rules should not be strictly enforced against him

because he is proceeding pro se. Finally, Abrams claims that the entire bankruptcy

proceeding is a continuing fraud which makes his notice of appeal timely. None of these

arguments is persuasive.

       Abrams’ absence due to his family emergency is, at most, excusable neglect, and

will not toll the period for filing a notice of appeal absent an application under Rule

8002(c). See Sound Radio, Inc., 109 F.3d at 879. We also note that, in the letter

accompanying his untimely notice of appeal, Abrams claimed that he had still not

received the District Court order at that time. Since Abrams was, in the end, able to

discover the Bankruptcy Court’s judgment, even though he had not received a copy of the

order, it remains unclear what actually prevented him from filing the notice sooner.

Abrams second argument is similarly without merit. We have never held that courts’

obligations to liberally interpret pro se pleadings justifies ignoring deadlines for filing an

appeal. See e.g. Poole v. Family Court of New Castle County, 368 F.3d 263, 266-69 (3d

Cir. 2004). Finally, regardless of whether the bankruptcy proceeding is a continuing

fraud, Abrams is appealing the particular order denying his claim, making the continuing

nature of the bankruptcy proceeding irrelevant.

       In sum, we readily conclude that the District Court correctly dismissed Abrams’

                                              4
appeal as untimely. Because his appeal lacks merit, we will dismiss it under

§ 1915(e)(2)(B). In light of the disposition of the appeal, Appellees’ motion to dismiss

and Appellant’s motion to stay proceedings are denied.



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