Aurora Commercial Corp.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
GERARD PIERRE,
Appellant,
- against -
AURORA COMMERCIAL CORP.,
Appellee.
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19cv11207 (JGK)
MEMORANDUM OPINION &
ORDER
JOHN G. KOELTL, District Judge:
The pro se appellant Gerard Pierre appeals from an order of
the United States Bankruptcy Court for the Southern District of
New York (Chapman, J.), entered November 14, 2019 sustaining the
objection of the debtor, the appellee in this Court, to the
proof of claim filed by Pierre. For the reasons that follow, the
matter is remanded to the bankruptcy court for the limited
purpose of resolving Pierre’s motion to extend the time to
appeal. In re Aurora Commercial Corp., No. 19-10843 (Bankr.
S.D.N.Y. Dec. 4, 2019), Dkt. No. 262.
“[A] notice of appeal must be filed with the bankruptcy
clerk within 14 days after entry of the judgment, order, or
decree being appealed.” Fed. R. Bankr. P. 8002(a)(1). Compliance
with 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,” even when
the appellant is a pro se litigant. In re Siemon, 421 F.3d 167,
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169 (2d Cir. 2005) (per curiam). A party may seek an extension
of time under Rule 8002(d)(1) from “the bankruptcy court”
provided that the party moves “within 21 days after [the time to
appeal expires], if the party shows excusable neglect.” Fed. R.
Bankr. P. 8002(d)(1); Todd v. Dribusch, No. 20-cv-45, 2020 WL
1434154, at *1 (N.D.N.Y. Mar. 24, 2020).
In this case, the bankruptcy court issued the order
sustaining the debtor’s objection to Pierre’s proof of claim on
November 13, 2019. Dkt. No. 241. On December 4, 2019, Pierre
filed a notice of appeal in the bankruptcy court that Pierre was
appealing the order sustaining the debtor’s objection to
Pierre’s proof of claim. Dkt. No. 261. Also on December 4, 2019,
Pierre filed a motion to extend the time to appeal with the
bankruptcy court citing excusable neglect. Dkt. No. 262. On
December 6, 2019, Pierre’s notice of appeal was transmitted to
this Court. This notice of appeal was untimely under Rule
8002(a), and therefore this Court lacks jurisdiction over the
appeal unless the bankruptcy court grants Pierre’s motion for an
extension of time to appeal. However, because the bankruptcy
court did not decide Pierre’s motion for an extension of time to
file an appeal, the matter is remanded to the bankruptcy court
for the limited purpose of determining, in the first instance,
whether Pierre has established excusable neglect within the
meaning of Rule 8002(d)(1), and whether the time to appeal
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should be extended. See Todd, 2020 WL 1434154, at *2 (employing
a limited remand to the bankruptcy court to resolve a motion for
an extension of time to appeal).
CONCLUSION
The matter is remanded to the bankruptcy court for the
limited purpose described in this order. The parties should
promptly notify the Court upon the bankruptcy court’s resolution
of the matter. Chambers will mail a copy of this order to the
pro se appellant.
SO ORDERED.
Dated: 	New York, New York
July 16, 2020 	__ 	/s/ John G. Koeltl 	__
John G. Koeltl
United States District Judge
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