Unpublished Disposition, 867 F.2d 613 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 613 (9th Cir. 1987)

In the Matter of Richard J. PETERS, Debtor.Wanda A. (Peters) BEALE, Appellant,v.Claude PITRAT, Trustee, Appellee.

No. 87-6448.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 18, 1988* .Decided Jan. 26, 1989.

Jones and Ashland, Judges, presiding.

Before CHOY, TANG and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Wanda Beale appeals the Bankruptcy Appellate Panel's (BAP) dismissal of her appeal of the bankruptcy court's judgment and the bankruptcy court's denial of her motion for reconsideration. Beale contends that her notice of appeal of the bankruptcy court's judgment to the BAP was timely because the bankruptcy court granted her an extension of time to file a notice of appeal, during which time she filed a motion for reconsideration. She contends that filing the motion for reconsideration tolled the time for filing a notice of appeal until the order denying her motion was entered, and that she filed a timely notice of appeal following the denial of her motion for reconsideration.

We affirm. A party must file a motion for reconsideration within 10 days after the entry of judgment. Bankr.R. 9023. If timely made, such a motion will toll the time for filing a notice of appeal. Bankr.R. 8002(b). The bankruptcy court does not have the power to enlarge this time period. Bankr.R. 9006(b). The bankruptcy court entered its judgment in Beale's case on December 16, 1986. Beale filed her motion for reconsideration on December 31, 1986, a period more than 10 days beyond the date of the judgment. This motion was not timely made and so did not toll the time for filing a notice of appeal.

Even if the bankruptcy court had the authority to grant an extension of time to file a motion for reconsideration, the BAP correctly dismissed Beale's appeal because the bankruptcy court improperly granted the request for an extension made 13 days after entry of final judgment. It was without jurisdiction.

A request for an extension made more than 10 days after the entry of judgment may only be granted on a showing of excusable neglect. Bankr.R. 8002(c). The standard for excusable neglect is a strict one. Headlee v. Ferrous Financial Services (In re Butler's Tire & Battery Co.), 592 F.2d 1028, 1034 (9th Cir. 1979). A party has an independent duty to keep informed, and a clerk's failure to notify a party of entry of final judgment is not ground for excusable neglect. Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411-12 (9th Cir. 1986). Beale only pointed to a failure of the court clerk to tell her attorney that the final judgment had been entered as evidence of excusable neglect. The bankruptcy court did not find excusable neglect. It granted the extension conditionally only assuming the motion was timely. The Bankruptcy Appellate Panel currently found no jurisdiction to extend the time and we agree that without a finding of excusable neglect it could not do so. (id.).

Beale filed her notice of appeal to the BAP on April 23, 1987, over four months after the entry of final judgment. Since the notice was not timely, the BAP lacked jurisdiction to hear the appeal. Swimmer v. IRS, 811 F.2d 1343, 1344 (9th Cir. 1987) (a timely notice of appeal is mandatory and jurisdictional). The BAP correctly dismissed Beale's appeal of the bankruptcy court judgment.

The BAP also correctly dismissed Beale's appeal of the bankruptcy court's denial of her motion for reconsideration. The court construes motions to be the type proper for the kind of relief requested. Biller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983). Beale's motion, seeking reconsideration of the bankruptcy court's conclusions of law, is most properly characterized as a Rule 9023 motion. See Bankr.R. 9023; Fed. R. Civ. P. 59. Such a motion must be served within ten (10) days of entry of final judgment. Id. Beale's motion was not filed within ten (10) days after entry of final judgment. Absent a finding of excusable neglect it was untimely. The BAP correctly dismissed her appeal of the denial of that motion as untimely.

AFFIRMED.

 *

The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3