Amina Anwar v. D. Johnson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMINA ANWAR; DAVID C. No. 11-16612
MCCLANAHAN,
Appellants, D.C. No.
2:10-cv-02036-
v. SRB
D. LEE JOHNSON; DAVID LYN
VERGEYLE; MARGARET HORNE ORDER AND
VERGEYLE, and the marital OPINION
community composed of David Lyn
Vergeyle and Margaret Horne
Vergeyle,
Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted
February 12, 2013—Stanford, California
Filed July 2, 2013
Before: Jerome Farris, Sidney R. Thomas,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Thomas
2 ANWAR V. JOHNSON
SUMMARY*
Bankruptcy
The panel granted a motion requesting publication of a
memorandum disposition filed February 19, 2013, affirming
the district court’s affirmance of the bankruptcy court’s
dismissal of nondischargeability complaints.
The panel held that the Federal Rules of Bankruptcy
Procedure do not afford the bankruptcy court the discretion
to extend retroactively the deadline for filing
nondischargeability complaints when an attorney’s computer
difficulties cause him to miss the electronic filing deadline.
COUNSEL
Mark Clarence McClanahan (argued), Portland, Oregon;
Mark E. Hall, Chandler, Arizona, for Appellants.
Randy Nussbaum (argued) and Beth J. Shapiro, Nussbaum,
Gillis & Dinner P.C., Scottsdale, Arizona, for Appellees.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ANWAR V. JOHNSON 3
ORDER
Appellants’ motion requesting publication of the
memorandum disposition filed February 19, 2013, is
GRANTED. The memorandum disposition is hereby
withdrawn and replaced with the opinion filed concurrently
with this order. No further petitions for rehearing or
rehearing en banc will be entertained.
OPINION
THOMAS, Circuit Judge:
The humorist Douglas Adams was fond of saying, “I love
deadlines. I love the whooshing sound they make as they fly
by.” But the law more often follows Benjamin Franklin’s
stern admonition: “You may delay, but time will not.” To
paraphrase Émile Zola, deadlines are often the terrible anvil
on which a legal result is forged.
This appeal presents the question of whether the Federal
Rules of Bankruptcy Procedure afford the Bankruptcy Court
the discretion to extend retroactively the deadline for filing
nondischargeability complaints when an attorney’s computer
difficulties cause him to miss the electronic filing deadline.
We conclude that the Rules of Bankruptcy Procedure do not
allow retroactive extension of the deadline, and we affirm the
judgment of the district court.
4 ANWAR V. JOHNSON
I
Amina Anwar and David C. McClanahan (collectively,
“Anwar”) are former employees of the now-bankrupt Xperex
corporation, of which D. Lee Johnson and David Vergeyle
were the founders, principal shareholders, and Chief
Financial Officer and Chief Executive Officer, respectively.
Johnson and Vergeyle filed a voluntary petition in bankruptcy
under Chapter 7 of the United States Bankruptcy Code in the
District of Arizona.
Upon receipt of the petition, the Arizona bankruptcy court
mailed notices to Anwar and other creditors listed in Johnson
and Vergeyle’s bankruptcy schedules, which informed the
creditors of the pending bankruptcy proceedings, the date of
the creditors’ meeting in each case, and the deadline for filing
a complaint to challenge the dischargeability of particular
debts. The bankruptcy court informed Anwar and the other
creditors that the deadline for filing nondischargeability
complaints in Johnson’s case was November 10, 2009, and
the deadline in Vergeyle’s case was November 20, 2009.
On November 10 and 24, 2009, Anwar filed timely
motions to extend the filing deadlines in Johnson’s and
Vergeyle’s cases, respectively. After a hearing, the
bankruptcy court granted the motions and extended the
deadline in both cases to April 13, 2010.
Anwar sought to challenge the dischargeability of the
debts owed to her based on section 523(a) of the Bankruptcy
Code, which excepts from discharge debts obtained by fraud.
ANWAR V. JOHNSON 5
11 U.S.C. § 523(a).1 However, even debts obtained by fraud
will be discharged unless the creditor timely requests a
determination by the bankruptcy court that the debt is not
dischargeable. 11 U.S.C. § 523(c). Federal Rule of
Bankruptcy Procedure (“FRBP”) 4007(c) “imposes a strict
60-day time limit for filing complaints to determine
dischargeability of debts listed in § 523(c).” Allred v.
Kennerley (In re Kennerley), 995 F.2d 145, 146 (9th Cir.
1993).
By local rule, the Arizona bankruptcy court has
established a mandatory electronic filing system, with
exceptions not relevant here. U.S. Dist. Ct. for the Dist. of
Ariz., Local R. Bankr. P. 5005-2 (2007). Parties access the
system through an online portal on the bankruptcy court’s
website. A creditor seeking to electronically file a
nondischargeability complaint must complete two steps:
First, the creditor must open an “adversary proceeding” in the
bankruptcy court’s electronic filing system. Second, the
creditor must electronically file a nondischargeability
complaint. Under the federal bankruptcy rules, the deadline
for all electronic filings is midnight local time on the day set
by the relevant order of the bankruptcy court. Fed. R. Bankr.
P. 9006(a)(4)(A). Thus, the deadline for Anwar to file her
1
Anwar’s nondischargeability complaints allege that Johnson and
Vergeyle fraudulently represented to Anwar and other Xperex employees
that, in dissolving the failing company, Xperex would ensure payment of
all past and ongoing employee benefits obligations and would give those
obligations first priority over all other debts, when in fact Xperex had
granted a blanket security interest in the company to Johnson’s sister-in-
law. The complaints asserted various tort claims arising from this alleged
misrepresentation. As explained below, however, the nature of the
allegations in Anwar’s nondischargeability complaints does not affect our
analysis of the issue on appeal.
6 ANWAR V. JOHNSON
nondischargeability complaints in the Johnson and Vergeyle
proceedings was midnight Arizona time on April 13, 2010.
Anwar’s counsel did not meet this deadline. Counsel did
not initiate the first step of the electronic filing process—
opening adversary proceedings—until after 9:00 p.m. on
April 13, 2010—the last day of the extended period for filing
nondischargeability complaints in the Johnson and Vergeyle
cases.2 Due to technical problems with counsel’s computer,3
he did not successfully file the nondischargeability complaint
in the Johnson case until 12:26 a.m. on April 14, 2010. He
did not file the complaint in the Vergeyle case until 12:38
a.m.
On May 18, 2010, Johnson and Vergeyle moved to
dismiss Anwar’s nondischargeability complaints as untimely.
Anwar responded with a motion “for relief from untimely
filing and to determine timeliness.” The bankruptcy court,
after a hearing, granted Johnson and Vergeyle’s motion,
denied Anwar’s, and dismissed the complaints with prejudice.
The bankruptcy court explained that, under the federal
bankruptcy rules and controlling precedent interpreting them,
2
The record reflects that Anwar’s counsel opened an adversary
proceeding in the Johnson case at 9:34 p.m. on April 13, 2010, and did so
in the Vergeyle case at 9:51 p.m. on April 13, 2010.
3
The legal secretary for Anwar’s counsel, who was responsible for
completing the electronic filings, testified that she encountered difficulties
while converting the nondischargeability complaints and attachments into
Portable Document Format (“PDF”) as required by the Arizona
bankruptcy court’s electronic filing instructions. Specifically, the
programs she was using to convert the files stopped responding, which
required her to restart the computer numerous times. Because of the
ensuing delay, she was unable to complete the conversion and filing
process before the midnight deadline on April 13, 2010.
ANWAR V. JOHNSON 7
he lacked discretion to grant retroactive extensions of FRBP
4007(c)’s deadline. That the relevant authorities pre-dated
the advent of the Arizona bankruptcy court’s mandatory
electronic filing system did not change the bankruptcy court’s
analysis. Reviewing de novo, the district court affirmed.
II
The sole issue on appeal is whether the bankruptcy court
erred in refusing to grant Anwar a retroactive extension of the
deadline for filing her nondischargeability complaints, so as
to render timely her counsel’s filings in the wee hours of the
morning following the midnight deadline.
“‘On appeal from a district court’s affirmance of a
bankruptcy court decision, we independently review the
bankruptcy court’s decision, without giving deference to the
district court.’” Rosson v. Fitzgerald (In re Rosson), 545 F.3d
764, 770 (9th Cir. 2008) (quoting Hebbring v. U.S. Trustee,
463 F.3d 902, 905 (9th Cir. 2006)). “The bankruptcy court’s
conclusions of law and interpretation of the Bankruptcy Code
are reviewed de novo and its factual findings for clear error.”
Greene v. Savage (In re Greene), 583 F.3d 614, 618 (9th Cir.
2009) (citing Salazar v. McDonald (In re Salazar), 430 F.3d
992, 994 (9th Cir. 2005)). We review the bankruptcy court’s
decision to dismiss Anwar’s complaints with prejudice for
abuse of discretion. See Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
8 ANWAR V. JOHNSON
A
The bankruptcy court correctly held that the Federal Rules
of Bankruptcy Procedure afford it no discretion to extend
retroactively the deadline set in FRBP 4007(c) for filing
nondischargeability complaints. That rule provides, with an
exception not relevant here, that
a complaint to determine the dischargeability
of a debt under § 523(c) shall be filed no later
than 60 days after the first date set for the
meeting of creditors under § 341(a). The
court shall give all creditors no less than 30
days’ notice of the time so fixed in the manner
provided by Rule 2002. On motion of a party
in interest, after hearing on notice, the court
may for cause extend the time fixed under this
subdivision. The motion shall be filed before
the time has expired.
Fed. R. Bankr. P. 4007(c).4
Thus, by its terms, the rule requires creditors such as
Anwar to file nondischargeability complaints within sixty
days of the creditors’ meeting. A creditor may move to
extend the deadline for cause—as Anwar successfully did
once—but “[t]he motion shall be filed before the time has
4
Anwar does not dispute that the bankruptcy court provided her the
requisite notice under FRBP 4007(c).
ANWAR V. JOHNSON 9
expired.” Id.5 Reinforcing the statement that creditors must
move for extensions of FRBP 4007(c)’s filing deadline before
the time for filing has expired, FRBP 9006(b)(3) states that
bankruptcy courts may extend this deadline “only to the
extent and under the conditions stated in” FRBP 4007(c)
itself. Fed. R. Bankr. P. 9006(b)(3). This requirement
distinguishes FRBP 4007(c)’s deadline from most others set
by the bankruptcy rules, which bankruptcy courts may extend
at any time upon a showing of good cause or excusable
neglect. Fed. R. Bankr. P. 9006(b)(1).
Consistent with the plain language of FRBP 4007(c) and
9006(b)(3), we have repeatedly held that the sixty-day time
limit for filing nondischargeability complaints under
11 U.S.C. § 523(c) is “strict” and, without qualification,
“cannot be extended unless a motion is made before the 60-
day limit expires.” In re Kennerley, 995 F.2d at 146 (citing
Anwiler v. Patchett (In re Anwiler), 958 F.2d 925 (9th Cir.
1992)); see also, e.g., Classic Auto Refinishing, Inc. v.
Marino (In re Marino), 37 F.3d 1354, 1358 (9th Cir. 1994);
Jones v. Hill (In re Hill), 811 F.2d 484, 486 (9th Cir. 1987).
Accordingly, Anwar was not entitled to a retroactive
extension of the filing deadline based on equitable
considerations or a local rule of bankruptcy procedure that
5
The bankruptcy code provides one exception from the prohibition
against retroactive extensions of FRBP 4007(c)’s filing deadline—for a
complaint challenging the dischargeability of a debt that was “neither
listed nor scheduled . . . in time to permit . . . timely filing of a proof of
claim and timely request for a determination of dischargeability of such
debt,” unless the creditor “had notice or actual knowledge of the
[bankruptcy] case in time for such timely filing and [complaint].”
11 U.S.C. § 523(a)(3)(B). Because Anwar did not invoke this exception
before the district court, we decline to consider it for the first time on
appeal. United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985).
10 ANWAR V. JOHNSON
purports to grant the bankruptcy court discretion to excuse
untimely filings.
B
The bankruptcy court lacked equitable power to grant
Anwar relief from her untimely filings. “In bankruptcy cases,
a court’s equitable power is derived from 11 U.S.C.
§ 105(a),” In re Anwiler, 958 F.2d at 928 n.5, which
authorizes the court to “issue any order, process, or judgment
that is necessary or appropriate to carry out the provisions of
[the Bankruptcy Code],” 11 U.S.C. § 105(a). However,
“whatever equitable powers remain in the bankruptcy courts
must and can only be exercised within the confines of the
Bankruptcy Code.” Norwest Bank Worthington v. Ahlers,
485 U.S. 197, 206 (1988). These confines include deadlines
set by the Federal Rules of Bankruptcy Procedure. See Zidell,
Inc. v. Forsch (In re Coastal Alaska Lines, Inc.), 920 F.2d
1428, 1432 (9th Cir. 1990) (holding that the bankruptcy court
may not invoke its equitable power under § 105(a) to enlarge
the time for filing a proof of claim under FRBP 3002(c),
where FRBP 9006(b)(3) limits the grounds for extension to
those stated in FRBP 3002(c) itself). Because granting
Anwar a retroactive extension of the filing deadline would
conflict with the plain language of FRBP 4007(c) and
9006(b)(3), the bankruptcy court could not rely on its
equitable powers to do so. See Childress v. Middleton Arms,
L.P. (In re Middleton Arms, L.P.), 934 F.2d 723, 725 (6th Cir.
1991) (“bankruptcy courts cannot use equitable principles to
ANWAR V. JOHNSON 11
disregard unambiguous statutory language”) (internal
quotation marks and citation omitted).6
Thus, the fact that Anwar missed the filing deadline by
less than an hour is immaterial. See Kelly v. Gordon (In re
Gordon), 988 F.2d 1000, 1001 (9th Cir. 1993) (denying
equitable relief from FRBP 4007(c) deadline where complaint
filed two days late); Moody v. Bucknum (In re Bucknum),
951 F.2d 204, 205–06 (9th Cir. 1991) (same). Nor is the lack
of prejudice to the debtors significant. See Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (holding
that lack of prejudice to opposing party “is not an
independent basis for invoking [equitable exceptions] and
sanctioning deviations from established procedures”). That
Anwar seeks to file a fraud claim is similarly irrelevant to the
analysis. See In re Kennerley, 995 F.2d at 146. Finally, the
advent of mandatory electronic filing systems does not upend
this body of precedent, and the fact that Anwar’s untimely
filing stemmed from difficulty with an electronic filing
system is immaterial. Paper filing systems present their own
unique opportunities for parties to miss their deadlines; as
the bankruptcy court in this case noted, the Arizona
bankruptcy court’s electronic filing system made it easier for
6
We acknowledge that the U.S. Supreme Court has not expressly
addressed whether FRBP 4007(c)’s filing deadline admits of any equitable
exceptions and that lower courts are divided on the issue. See Kontrick v.
Ryan, 540 U.S. 443, 457 & nn.11–12 (2004) (declining to decide question
and noting circuit split). We need not, and do not, reach the question of
whether external forces that prevented any filings—such as emergency
situations, the loss of the court’s own electronic filing capacity, or the
court’s affirmative misleading of a party—would warrant such an
exception. See, e.g., In re Kennerley, 995 F.2d at 147–48; see also
Ticknor v. Choice Hotels Intern., Inc., 275 F.3d 1164, 1165 (9th Cir.
2002).
12 ANWAR V. JOHNSON
Anwar’s counsel to timely file the complaints from his office
in Oregon. In short, absent unique and exceptional
circumstances not present here, we do not inquire into the
reason a party failed to file on time in assessing whether she
is entitled to an equitable exception from FRBP 4007(c)’s
filing deadline; under the plain language of the rules and our
controlling precedent, there is no such exception.
C
Contrary to Anwar’s assertion, the Arizona bankruptcy
court’s local rules do not provide relief. Pursuant to FRBP
9029(a)(1), federal district courts may promulgate local rules
of bankruptcy procedure “which are consistent with—but not
duplicative of—Acts of Congress and [the FRBP] and which
do not prohibit or limit the use of the Official Forms . . . .”
Fed. R. Bankr. P. 9029(a)(1). In addition, FRBP 5005(a)(2)
authorizes district courts to promulgate local bankruptcy rules
that require electronic filing, provided such rules comport
with technical standards established by the Judicial
Conference of the United States and allow for “reasonable
exceptions.” Fed. R. Bankr. P. 5005(a)(2). The bankruptcy
court for the District of Arizona, as noted above, has
exercised its authority to establish an electronic filing system
and has promulgated local procedural rules governing its use.
Of relevance to this appeal, Local Rule of Bankruptcy
Procedure (“LRBP”) 5005-2(n) provides that an attorney or
party whose electronic filing “is untimely or otherwise
improper may seek appropriate relief from the bankruptcy
court upon a showing of good cause or excusable neglect.”
Local R. Bankr. P. 5005-2(n). Anwar argues that this local
rule gives the bankruptcy court discretion to consider
untimely nondischargeability complaints where the late filing
ANWAR V. JOHNSON 13
results from technical difficulty with the electronic filing
system.
However, a local rule of bankruptcy procedure cannot be
applied in a manner that conflicts with the federal rules. See
Pradier v. Elespuru, 641 F.2d 808, 810 (9th Cir. 1981).
District and bankruptcy courts have been delegated authority
to adopt local rules prescribing the conduct of business but
the rules must be consistent with the Bankruptcy Code and
the Federal Rules of Bankruptcy Procedure. Sigma Micro
Corp. v. Healthcentral.com (In re Healthcentral.com),
504 F.3d 775, 784 (9th Cir. 2007). Local bankruptcy rules
may not “enlarge, abridge, or modify any substantive right.”
Sunahara v. Burchard (In re Sunahara), 326 B.R. 768, 782
(B.A.P. 9th Cir. 2005) (internal quotation marks and citation
omitted). Because the federal bankruptcy rules do not permit
an “excusable neglect” exception to FRBP 4007(c)’s filing
deadline, LRBP 5005-2(n) cannot provide Anwar relief.
It is of no moment that LRBP 5005-2(n) closely tracks a
model rule of local bankruptcy procedure developed by the
Judicial Conference of the United States.7 A model rule is, by
definition, only an advisory template. By itself, it has no
7
The relevant model rule provides that a user of an electronic filing
system “whose filing is made untimely as the result of a technical failure
may seek appropriate relief from the court.” U.S. Judicial Conference,
Cmte. on Court Admin. & Case Mgmt., Model Local Bankruptcy Court
Rules for Electronic Case Filing, Rule 11 – Technical Failures (June 29,
2001). The associated commentary states that the model rule addresses
both “the possibility that a party may not meet a filing deadline because
the court’s website is not accessible for some reason” and “the possibility
that the filer’s own unanticipated system failure might make the filer
unable to meet a filing deadline.” Id. at cmt. 1.
14 ANWAR V. JOHNSON
legal force and cannot trump the Federal Rules of Bankruptcy
Procedure.
III
We decline Anwar’s invitation to revise the Federal Rules
of Bankruptcy Procedure, which plainly provide that a party
may file a nondischargeability complaint under 11 U.S.C.
§ 523 outside the sixty-day window established by FRBP
4007(c) if, and only if, she files a motion showing good cause
for an extension before the sixty-day period lapses. Fed. R.
Bankr. P. 4007(c), 9006(b)(3).
Because neither the federal rules, local rules, nor model
rules of bankruptcy procedure gave the bankruptcy court
authority to relieve Anwar from the consequences of her
untimely filing, we affirm the dismissal of her
nondischargeability complaints with prejudice.
AFFIRMED.