Unpublished Disposition, 936 F.2d 578 (9th Cir. 1989)Annotate this Case
In re Janetta Scott MELIKIAN, Debtor.Janetta Scott MELIKIAN, a/k/a Janetta Sconiers Melikian, Appellant,v.John HOVANNISIAN, Vars Hovannisian, Appellees.
United States Court of Appeals, Ninth Circuit.
Submitted June 18, 1991.* Decided June 21, 1991.
Before BEEZER, WIGGINS and FERNANDEZ, Circuit Judges.
Janetta Scott Melikian appeals from the order of the Bankruptcy Appellate Panel (BAP) denying her motion for reconsideration of the BAP's dismissal of her appeal for failure to prosecute. We dismiss this appeal for lack of jurisdiction.
On October 24, 1988, the BAP dismissed Melikian's appeal for failure to prosecute. On December 2, 1988, Melikian filed a motion for reconsideration under Fed. R. Civ. P. 60(b), in which she requested relief from the order of dismissal. On January 25, 1989, the BAP, apparently construing Melikian's 60(b) motion as a petition for rehearing, denied Melikian's motion on the grounds that it was untimely pursuant to Fed. R. App. P. 40. On January 31, 1989, Melikian filed her notice of appeal with this court.
A petition for rehearing must ordinarily be filed within fourteen days of the entry of judgment. See Fed. R. App. P. 40. The Bankruptcy Rules allow only a ten day period from the date of judgment in which to file such a petition. See Bankr.R. 8015. Melikian did not file her motion within either the ten day or the fourteen day time period. Therefore, to the extent that Melikian's motion for reconsideration could be construed as a petition for rehearing, the motion was untimely. See Fed. R. App. P. 40; Bankr.R. 8015.
A notice of appeal to this court must be filed within thirty days of the judgment appealed from in civil cases. See Fed. R. App. P. 4(a) (1). A timely petition for rehearing pursuant to Bankr.R. 8015 tolls the time for appeal to this court. See In Re Hoag Ranches, 846 F.2d 1225, 1226 n. 1 (9th Cir. 1988) (citations omitted); 11 U.S.C.A. Sec. 8015 Advisory Committee Note (West Supp.1988). Here, Melikian's petition for rehearing was untimely, and thus, it did not toll the time for appeal. See id. The BAP judgment dismissing Melikian's action was entered on October 24, 1988, and Melikian filed her notice of appeal with this court on January 31, 1989. Therefore, Melikian's notice of appeal to this court is untimely because it was filed in excess of thirty days from the date of the BAP's judgment. See Fed. R. App. P. 4(a) (1). Accordingly, we lack jurisdiction over this appeal. See Munden v. Ultra Alaska Assocs., 849 F.2d 383, 386 (9th Cir. 1988) (a timely notice of appeal is mandatory and jurisdictional).1
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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
Melikian, brought her motion for reconsideration under Fed. R. Civ. P. 60(b). Moreover, she recites reasons which arguably constitute excusable neglect. Even if the BAP could have entertained Melikian's motion as a motion for reconsideration pursuant to Fed. R. Civ. P. 60(b), such a motion would not toll the notice of appeal period. See Barry v. Bowen, 825 F.2d 1324, 1328 (9th Cir. 1987). Therefore, Melikian's appeal to this court would still be untimely even if her motion was treated as a Rule 60(b) motion. See id