848 F. 2d 1242 - Conte v. G Dustin

MEMORANDUM**

Frank Conte appeals pro se the district court's dismissal of his appeal from a bankruptcy court's order for lack of jurisdiction. Because Conte's appeal from the bankruptcy court's order was untimely, we affirm.

* Conte had a contract claim against Carol and Joseph Dustin. A California state superior court awarded Conte $12,258.84 after entering a default judgment against the Dustins. After the Dustins filed for bankruptcy under Chapter 7, the bankruptcy court discharged all their debts on December 3, 1986.

On December 31, 1986, the district court received Conte's document entitled "Complaint Objecting to Discharge of Debtors," which was filed on January 7, 1987. At the April 1, 1987 status conference, the district court informed Conte that it would dismiss the action for lack of jurisdiction because it was untimely filed. On April 6, 1987, Conte filed his notice of appeal to this court. On April 13, 1987, the district court filed a written order in which it construed Conte's document as an appeal from the bankruptcy court's order and concluded that Conte's appeal was not timely filed. On April 20, 1987, Conte filed a motion entitled "Petition for Review/Rule 50(b)" with the district court. The district court did not rule on the Rule 50(b) motion.

The threshold issue before us is whether we have jurisdiction to entertain this appeal. Conte prematurely filed his notice of appeal because the court had not entered judgment. A premature notice of appeal is effective so long as it is not followed by one of the post-trial motions enumerated in Fed.R.App. 4(a)(4). Fed.R.App.P. 4(a)(2); Acosta v. Louisiana Dep't of Health and Human Resources, 106 S.Ct. 2876, 2878 (1986); Brand v. Menlove Dodge, 796 F.2d 1070, 1072 n. 2 (9th Cir.1986). After filing his notice of appeal, however, Conte filed a motion styled as "Petition for Review/Rule 50(b)." A Rule 50(b) motion for judgment notwithstanding the verdict renders Conte's previous notice of appeal ineffective, thereby depriving us of jurisdiction. Fed.R.App.P. 4(a)(2), (4).

Because Conte is a pro se litigant, we have an obligation to construe his pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Although he labels his "Petition for Review" as a Rule 50(b) motion, a plain reading of its contents demonstrates that he obviously intended it as a motion for rehearing and not as a motion for judgment notwithstanding verdict. Indeed, a Rule 50(b) motion would be procedurally impossible since Conte's claim never went before a jury.1 We therefore construe Conte's motion as a motion for rehearing under Bankruptcy Rule 8015, 11 U.S.C.A. Sec. 8015 (West 1984), since he requested the court to reexamine the entire record. Such a motion for rehearing under Bankruptcy Rule 8015--as it existed when Conte made it--did not vitiate the previously filed notice of appeal. See 11 U.S.C.A. Rule 8015 Advisory Committee Note (West 1984). This interpretation is consistent with our ruling in In re Lovitt, 757 F.2d 1035, 1038-39 (9th Cir.), cert. denied, 474 U.S. 849 (1985), which held that Rule 8015 motions do not toll the time for taking an appeal from the district court's judgment.2 Accordingly, we hold that Conte's notice of appeal was timely and that we have jurisdiction to entertain the appeal.

As to the merits of Conte's appeal, we review dismissals for lack of jurisdiction de novo. Vestron, Inc. v. Home Box Office, Inc., 839 F.2d 1380, 1381 (9th Cir.1988).

To appeal a bankruptcy court's order, a party must file a notice of appeal within ten (10) days of its entry. 11 U.S.C.A. Sec. 8002(a) (West Supp.1988). In certain situations, an extension of up to twenty (20) days from the expiration of the time otherwise prescribed by section 8002(a) may be granted. 11 U.S.C.A. Sec. 8002(c) (West Supp.1988).3 Failure to file within the time period deprives the district court of jurisdiction. In re Nucorp Energy, 812 F.2d 583, 584 (9th Cir.1987).

Although the bankruptcy court filed its order on December 3, 1986, the district court did not receive Conte's appeal until December 31, 1986, which in turn was not filed until January 7, 1987. More than ten days passed before Conte filed his appeal. Because the appeal was untimely filed, we hold that the district court properly dismissed the action for lack of jurisdiction.

AFFIRMED.