This case clarifies the effect of an untimely – but unobjected‐to – notice of appeal in a bankruptcy matter under Federal Rule of Appellate Procedure 6(b).
In 2007, Appellant Tze Wung Consultants, Ltd. (“Tze Wung Consultants”) and related Appellants Trendi Sportswear, Inc. and Indu Craft, Inc. (collectively, “Appellants”) moved the United States Bankruptcy Court for the Southern District of New York (Drain, J.) to eliminate or suspend discharge under the bankruptcy plan of a judgment by Trendi Sportswear, Inc. (“Trendi Sportswear”) against debtor Indu Craft, Inc. (“Indu Craft”) in the amount of $21,101,348.47. The bankruptcy court denied Appellants’ motions, and Appellants moved for reconsideration pursuant to Federal Rules of Bankruptcy Procedure 9023 and 9024. In 2011, the bankruptcy court denied the motions for reconsideration. Thereafter, Appellants appealed to the United States District Court for the Southern District of New York (Furman, J.), and on July 31, 2012, the district court affirmed the bankruptcy court’s 2007 and 2011 orders. Tze Wung Consultants filed a motion for reconsideration under Federal Rule of Civil Procedure 59(e) on August 23, 2012, which the district court denied on August 27, 2012.
Tze Wung Consultants appealed the district court’s judgment to this Court on September 20, 2012, 51 days after the district court entered its judgment and past the 30‐day time limit that is prescribed by Federal Rule of Appellate Procedure 4(a)(1)(A) and incorporated into bankruptcy appeals through Rule 6(b)(1). (Meanwhile, Appellants Trendi Sportswear and Indu Craft filed appeals on August 30, 2012. See Nos. 12‐3515‐cv, 12‐3618‐cv.) In December 2012, Appellee Bank of Baroda moved to consolidate the three separate appeals, but Bank of Baroda made no mention of the fact that Tze Wung Consultants’ appeal was untimely. A panel of this Court ordered the appeals to be heard in tandem and sua sponte directed Tze Wung Consultants and Bank of Baroda to file letter briefs addressing whether this Court has jurisdiction over Tze Wung Consultants’ untimely appeal. We conclude that the 30‐day time limit governing appeals from a district court’s judgment as an intermediate appellate body in a bankruptcy case (and made applicable here by virtue of Federal Rule of Appellate Procedure 6(b)(1)) is a nonjurisdictional claim‐processing rule, so that untimely appeals can proceed to the merits if the opposing party fails properly to object. Because Bank of Baroda waived its objection to Tze Wung Consultants’ untimely appeal by failing to make such an objection, we act within our jurisdiction in allowing Tze Wung Consultants’ appeal to proceed along with that of the other Appellants in this matter.
Judge(s): Debra Ann Livingston
Jurisdiction: U.S. Court of Appeals, Second Circuit
|Circuit Court Judge(s)|
|Trial Court Judge(s)|
|Appellant Lawyer(s)||Appellant Law Firm(s)|
|Joel Lewittes||Law Office of Joel Lewittes|
|Appellee Lawyer(s)||Appellee Law Firm(s)|
|William Hanlon||Seyfarth Shaw LLP|