884 F. 2d 1394 - Dettman Dettman v. Fresno-Madera Production Credit Association

MEMORANDUM**

Vernon and Anita Dettman (Dettman), Chapter 11 debtors, appeal the Bankruptcy Appellate Panel's (BAP) denial of their motion for extension of time to file a notice of appeal from the BAP's order affirming the bankruptcy court's decision granting Fresno-Madera Production Credit Association a security interest in Raisin Industry Diversion Program certificates pursuant to 11 U.S.C. Sec. 552(b) because the Dettman's grapevines were planted prior to the filing of their bankruptcy petition. The Dettmans contend that the court clerk's failure to notify the parties of the entry of judgment of the bankruptcy appellate panel until after the time to file the notice of appeal constitutes a basis for a finding of excusable neglect.

We affirm. If a timely motion for rehearing is filed under Bankruptcy Rule 8015, the time for appeal begins to run from the entry of the order denying rehearing. 11 U.S.C. Bankr. 8015. An appeal must be filed within thirty days of the date of the entry of the judgment or order appealed from. Fed.R.App.P. 4(a)(5); In re 6 & 40 Inv. Group Inc., 752 F.2d 515, 516 (10th Cir.1985) (applied to petition for rehearing). Lack of notice of the entry of an order or judgment "does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure." Fed.R.Civ.P. 77(d); see also 11 U.S.C. Bankr.R. 9022(a).

This court reviews a denial of a motion for extension of time to file a notice of appeal for abuse of discretion. Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411-12 (9th Cir.1986). A request for an extension of time made less than 30 days after the expiration of time for filing a notice of appeal may only be granted on a showing of excusable neglect. Fed.R.Civ.P. 4(a); see also 11 U.S.C.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).

The Dettmans only point to the failure of the court clerk to immediately notify the appellants and appellees and their attorneys that the final judgment had been entered as evidence of excusable neglect. Moreover, the Dettmans concede that the court docket shows entry of the order denying their motion for rehearing on May 17, 1988, the same date that the motion was denied. 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 at 1411-12; cf. Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.1986) (failure of the court clerk to give notice of entry of judgment is not ground, by itself, for a finding of excusable neglect). The BAP found no jurisdiction to extend the time and we agree that without a finding of excusable neglect it could not do so. See Alaska Limestone, 799 F.2d at 1411-12.

The Dettmans filed their notice of appeal to the BAP on June 26, 1988, approximately 40 days 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 the Dettman's appeal of the bankruptcy court judgment.

AFFIRMED.