In re: Richard Mullarkey ( 2010 )

BLD-303 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3712
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In re: RICHARD MULLARKEY,
Debtor
RICHARD MULLARKEY,
Appellant
v.
LEONARD TAMBOER; LESLIE TAMBOER;
JOHN M. MCKENNA; DAVID GHERLONE;
STEVEN P. KARTZMAN
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 09-cv-04518, 05-cv-02010 & 05-cv-02594)
District Judge: Honorable Dickinson R. Debevoise
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 30, 2010
Before: RENDELL, CHAGARES AND VANASKIE, Circuit Judges
(Opinion filed October 7, 2010 )
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OPINION
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PER CURIAM
The District Court dismissed Richard Mullarkey’s notice of appeal from a
Bankruptcy Court order on September 11, 2009. Mullarkey filed a motion for
reconsideration on September 22, 2009, which the District Court denied on December 24,
2009. In the same order, the District Court affirmed the Bankruptcy Court’s order and
dismissed with prejudice Mullarkey’s claims in their entirety. On February 5, 2010,
Mullarkey filed a notice of appeal, specifying a District Court order of January 8, 2010.
As no such order exists, the District Court construed it as a notice of appeal from the two
earlier orders.
Upon our receipt of the notice of appeal in that case, we notified Mullarkey that his
appeal was subject to dismissal for jurisdictional defect because it appeared to be
untimely filed. In response, on April 27, 2010, Mullarkey filed a request for an extension
of time to file his notice of appeal in the District Court. Initially, the District Court
granted the motion. The Appellees filed a motion for reconsideration in the District
Court. The District Court granted their motion, and vacated its order granting the
extension of time, and denied Mullarkey’s motion for an extension of time as untimely
filed. Mullarkey appeals from that order.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s
decision to deny an extension of time to file a notice of appeal for abuse of discretion.
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See Ramseur v. Beyer, 921 F.2d 504, 506 n.2 (3d Cir. 1990). Upon review, we will
summarily affirm the District Court’s order because no substantial question is presented
on appeal. See L.A.R. 27.4; I.O.P. 10.6.
The District Court properly reconsidered its decision and denied Mullarkey’s
motion for an extension of time to file a notice of appeal. A district court may extend the
time to file a notice of appeal if “(i) a party so moves no later than 30 days after the time
prescribed by this Rule 4(a) expires; and (ii) regardless of whether its motion is filed
before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party
shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5). In this case, Mullarkey
filed his request for an extension on April 27, 2010, more than 30 days after his notice of
appeal should have been filed pursuant to Federal Rule of Appellate Procedure 4(a)(1).
His untimely request was properly denied.
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