Allen v. Ch. 7 Trustee

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 15, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
C ARI A LLEN ,
Plaintiff-Appellant,
v. No. 06-4002
(D.C. No. 2:05-CV-717-TC)
CH . 7 TRUSTEE: ELIZAB ETH (D. Utah)
LO VERIDGE; DEPO T A SSOCIATES;
G RA N ITE STO N E; IN TER NA L
R EV EN U E SER VIC E; O FFIC E OF
THE U NITED STATES TRUSTEE;
B RIG H TO N BA N K ,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before O ’B RIE N and BROR BY, Circuit Judges, and BRO W N, ** District Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.
Plaintiff-appellant Cari Allen, proceeding pro se, appeals from a district
court order affirming orders of the bankruptcy court denying her motion to
remove the trustee in a Chapter 7 proceeding involving Log Furniture, Inc.
(the removal motion), and later refusing to reconsider that order. Because the
district court lacked subject matter jurisdiction, we vacate that portion of the
district court’s order affirming the denial of the removal motion, and we remand
with instructions to dismiss that portion of M s. Allen’s appeal. W e affirm the
remainder of the district court’s decision.
The genesis of this appeal occurred on February 4, 2005, when the
bankruptcy court denied M s. Allen’s removal motion in the Log Furniture
bankruptcy proceeding. Pursuant to Fed. R. Bankr. P. 8002(a), any appeal of that
order to the district court had to be filed “w ithin ten days of the date of the entry
of the . . . order . . . appealed from.” That date was February 14, 2005, unless
M s. Allen had filed a timely motion of the type described in Fed. R. Bankr. P.
8002(b). M otions included in Rule 8002(b) include motions “to alter or amend
the judgment under Rule 9023,” Fed. R. Bankr. P. 8002(b)(2), and “for relief
under Rule 9024 if the motion is filed no later than 10 days after the entry of
judgment,” id. 8002(b)(4).
On February 18, 2005, M s. Allen filed a motion in the bankruptcy court
under Rule 8002(b) asking that court to reconsider its earlier order refusing to
remove the trustee. On July 1, 2005, the Bankruptcy Court entered an order
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denying the motion to reconsider on the ground that it was untimely. 1
M s. Allen’s notice of appeal to the district court was filed July 11, 2005.
W e first review the bankruptcy court’s denial of M s. Allen’s m otion to
reconsider as untimely because it controls our analysis of the district court’s
denial of the removal motion. M s. Allen’s motion to reconsider is not in the
record; we therefore rely on the bankruptcy court’s characterization of that
motion as one brought under Fed. R. Civ. P. 59, incorporated in the Bankruptcy
Rules as Rule 9023. Any motion under Rule 59 must be filed not later than ten
days after entry of the judgment that is the subject of the motion. Fed. R. Civ. P.
59(b). Because M s. Allen’s motion to reconsider was filed more than ten days
after the February 4, 2005, order, it was untimely. The bankruptcy court therefore
correctly denied it, and that determination was properly affirmed by the district
court.
M s. Allen argues that the bankruptcy court should have treated her motion
to reconsider as one filed under bankruptcy Rule 9024, the counterpart to Fed R.
Civ. P. 60. Ordinarily, a court will consider a motion to alter or amend a
judgment filed more than ten days after the entry of a judgment to be one filed
under Rule 60. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.
1
The Federal Rules of Civil Procedure do not recognize a “motion for
reconsideration.” See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.
1991). However, because the bankruptcy court used that terminology to refer to
M s. Allen’s Rule 8002(b) motion, we shall do the same for the sake of
consistency.
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1991). Bankruptcy Rule 8002(b), however, adds a filing deadline to Rule 9024
for purposes of tolling the appeal period that Fed. R. Civ. P. 60 does not have.
Rule 8002(b) provides that a R ule 9024 motion will toll the running of the appeals
period only if it “is filed not later than 10 days after the entry of judgment.” The
advisory committee note to the 1994 amendment to Rule 8002 explains:
The addition of this motion conforms to a similar amendment to
F.R.App.P. 4(a)(4) made in 1993, except that a Rule 9024 motion
does not toll the time to appeal unless it is filed within the 10-day
period. The reason for providing that the motion extends the time to
appeal only if it is filed within the 10-day period is to enable the
court and the parties in interest to determine solely from the court
records whether the time to appeal has been extended by a motion for
relief under Rule 9024.
Thus, whether considered a motion under Rule 9023 and Rule 59, or a
motion under Rule 9024, both of w hich have a ten-day filing limit, M s. Allen’s
motion to reconsider was untimely and was properly denied. The untimely
motion to reconsider did not toll the ten-day time period for filing a notice of
appeal from the order denying the removal motion. The district court, therefore,
only had jurisdiction to consider the bankruptcy court’s refusal to reconsider that
order. See Weitz v. Lovelace Health Sys., Inc., 214 F.3d 1175, 1181 (10th Cir.
2000). Because the district court lacked jurisdiction over the appeal from the
order denying the removal motion, we similarly lack jurisdiction over the merits
of the removal issue and act merely to correct the error of the district court in
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entertaining that part of the appeal. See Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534, 541 (1986).
Therefore, as to M s. Allen’s removal motion, we VACATE the district
court’s decision and remand w ith instructions to dismiss for lack of subject matter
jurisdiction. As to M s. Allen’s motion to reconsider, we AFFIRM the district
court’s decision.
Entered for the Court
W ade Brorby
Circuit Judge
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