
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1890                             JOSE ENRIQUE COLON-SANTANA,                                      Appellant,                                          v.                            JULIO MARTINEZ-MALAVE, ET AL.,                                      Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Jose Enrique Colon Santana on brief pro se.            __________________________            Carlos E. Aquilar Perez and Woods & Woods on brief for appellees.            _______________________     _____________                                 ____________________                                   August 22, 1997                                 ____________________                 Per Curiam.  Jose Enrique Colon-Santana appeals from the                 __________            district  court's dismissal of  his appeal from  a bankruptcy            court order  imposing costs and attorneys' fees  on Colon and            his  client.   The district  court dismissed  the appeal  and            affirmed  the bankruptcy court's denial of appellant's Motion            for Reconsideration  of the  Judgment ("the  Motion") on  the            ground that the notice of appeal had been untimely filed.                 Appellant  concedes that the  notice of appeal  from the            district court order awarding costs and attorneys' fees ("the            Judgment") was  untimely  filed under  Bankruptcy Rule  8001.            That Rule requires  an appeal to be  filed within 10 days  of            the judgment  appealed from.    The Judgment  was entered  on            April  2, 1993.  The Notice of  Appeal was filed on September            21,  1993.  "Untimely notice of  appeal deprives the district            court  of  jurisdiction  to  review  the  bankruptcy  court's            order."  In re Abdallah, 778 F.2d 75, 77 (1st Cir. 1985).                     ______________                 In  an  effort  to  overcome  this formidable  obstacle,            appellant  argues  that  the  bankruptcy  court  abused   its            discretion in not granting the  Motion.  He contends that his            failure to  file a timely  notice of appeal should  have been            excused because the court clerk had mailed notice of entry of            the  Judgment to  the  wrong address  and  appellant had  not            received it until after the appeal period had expired.1                                                                  1                                            ____________________               1   The  appeal  to  the district  court  was timely  with               1            respect to the  bankruptcy court's order denying  the Motion,            which order was entered on September 13, 1993.                                         -2-                 1. Bankruptcy Rule 8002(c)                    _______________________                 Even if, as  appellant suggests, we construe  the Motion            as a request for an extension of time  to appeal, pursuant to            Bankruptcy  Rule 8002(c),  the request  was  untimely.   "The            wording of Rule 8002(c) makes it clear that once 30 days have            expired from  the entry of  the order without some  notice of            appeal  having been  filed (either  before  or following  the            expiration of  the ten-day  period), no  appeal  may ever  be            taken,  even  upon  a  showing  of excusable  neglect."    10            Lawrence P. King,  Collier on Bankruptcy   8002.09  (15th ed.                               _____________________            rev.  1997); see,  e.g., In  re  Martinez, 97  B.R. 578,  580                         ___   ____  ________________            (B.A.P. 9th Cir. 1989), aff'd,  919 F.2d 145 (9th Cir. 1990).            Neither the Motion nor the Notice of Appeal were filed within            30  days of  the  entry  of the  Judgment.   Therefore,  Rule            8002(c) did not  authorize the extension of the appeal period            in  this  case,  even if  Colon  had  demonstrated "excusable            neglect."                 2. Fed. R. Civ. P. Rule 60(b)                    __________________________                 In  the alternative, appellant  seems to argue  that the            Motion should have been construed as made pursuant to Fed. R.            Civ.  P. 60(b),  which has  been  used in  some instances  to            revive lost rights of appeal.  See Scola v. Boat Frances, R.,                                           ___ _____    _________________            Inc., 618 F.2d 147,  152 (1st Cir.  1980).  Rule 60(b),  made            ____            applicable  to  bankruptcy  cases  by  Bankruptcy Rule  9024,            permits  a motion for  relief from a judgment  or order to be                                         -3-            filed "within a  reasonable time" after judgment enters.   We            assume for  the purposes of  this appeal that the  Motion was            pursuant  to Rule  60(b)  and  that it  was  filed "within  a            reasonable time."                 Appellant's  reliance   on  Rule  60(b)   is  misplaced,            however,  where  lack   of  notice  is  the  reason  for  the            untimelines of  the appeal.   Bankruptcy  Rule 9022(a),  like            Fed. R. Civ.  P. 77(d), provides that, although  the clerk is            to  provide  notice  of entry  of  judgment  to the  parties,            "[l]ack of notice  of the entry does  not affect the  time to            appeal or relieve  or authorize the court to  relieve a party            for failure  to appeal  within  the time  allowed, except  as            permitted in Rule 8002." Rule 9022(a).                 "The courts have unanimously agreed, a mere lack of Rule            77(d) notice does not justify Rule 60(b) relief."  12 Moore's                                                                  _______            Federal  Practice,  60.48[6][c] (3d ed. 1997).  "[P]arties to            _________________            an ongoing case have an independent obligation to monitor all            developments  in  the case  and  cannot rely  on  the clerk's            office to do  their homework for them."  Witty  v. Dukakis, 3                                                     _____     _______            F.3d 517, 520 (1st Cir. 1993).  Therefore, even if  we assume            (without deciding) that  appellant did not receive  notice of            entry of  the Judgment  within the  appeal period,  that fact            alone would not justify Rule 60(b) relief.  Appellant has not            alleged that  he  diligently monitored  the bankruptcy  court            docket to determine if there  had been a ruling on appellees'                                         -4-            Motion Requesting Ruling  on Sanctions, which was  filed only            four months before the Judgment  was entered.  The bankruptcy            court  did  not abuse  its  broad discretion  in  denying the            Motion.  See Witty, 3 F.3d at 521.                     ___ _____                 The district  court's Opinion  and Order  dated June  4,            1996, is affirmed.  See Loc. R. 27.1.                     ________   ___                                         -5-
