In Re American Freight System, Inc., 158 B.R. 225 (D. Kan. 1993)

Kurt A. Stohlgren, Hillix, Brewer, Hoffhaus, Whittaker & Wright, Kansas City, MO, for American Freight System, Inc.

Anne L. Baker, Wright, Henson, Somers, Sebelius, Clark & Baker, Topeka, KS, for Point Sporting Goods, Inc.

CROW, District Judge.

On April 20, 1993, the bankruptcy court issued an order granting American Freight System, Inc.'s (AFS) motion for Rule 54(b) certification. On May 4, 1993, the order granting AFS's motion for a Rule 54(b) certification was entered on the docket. On May 4, 1993, AFS filed its notice of appeal.

This case comes before the court upon Point Sporting Goods, Inc.'s motion to dismiss this appeal. Point Sporting Goods notes that under Bankruptcy Rule 8002(a), "the Notice of Appeal shall be filed with the clerk within 10 days of the date of the entry of judgment, order or decree appealed from." Point Sporting Goods argues that because AFS did not file its notice of appeal within ten days of April 20, 1993, the date the Rule 54(b) certification was issued, this appeal is untimely and the court must dismiss this appeal for lack of subject matter jurisdiction.

AFS responds, arguing that it timely filed its notice of appeal. AFS argues that the ten-day time period does not run from the date the Rule 54(b) certification was filed, but instead runs from the date the order was entered on the docket.

Point Sporting Goods did not file a reply. However, the first page of Point Sporting Goods' brief addressing the substantive issues of this appeal apparently does not concede this point. Point Sporting Goods' brief still "contends that this court lacks subject matter jurisdiction because of the appellant's failure to file a timely notice of appeal. If the notice was timely filed, Point agrees with the appellant's statement that this court has jurisdiction pursuant to 28 U.S.C. § 158."^[1]

AFS' analysis of this issue is correct. *226 Bankruptcy Rule 8002(a) requires that a "notice of appeal be filed with the clerk within 10 days of the date of the entry of judgment, order, or decree appealed from." Under Bankruptcy Rule 8001(a), an appeal can only be taken from a final judgment, order or decree. An order is final and therefore appealable only after it has been entered on the docket of the bankruptcy case. Bankruptcy Rules 5003(a) and 9021.

In re Rozark Farms, Inc., 139 B.R. 463, 464 (E.D.Mo.1992); see In re Atteberry, No. 92-4370-SAC, 1993 WL 35104, 1993 U.S. Dist. LEXIS 1598 (January 22, 1993) (a judgment is not effective until it is entered on the docket as required by Bankruptcy Rule 5003). Therefore, AFS' notice of appeal was timely filed and Point Sporting Goods' motion to dismiss is without merit.

IT IS THEREFORE ORDERED that Point Sporting Goods' motion to dismiss appeal (Dk. 6) is denied.

[1] Rather than conceding that its motion to dismiss is without merit, Point Sporting Goods continues to press an argument that is not founded upon a reasonable basis in fact nor is warranted by existing law. Point Sporting Goods makes absolutely no attempt to explain how AFS' plain reading of the applicable rules is incorrect. Counsel is reminded of the obligations imposed by Fed.R.Civ.P. 11.