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Ash Trucking Co., Inc. v. Global Industrial Technologies

February 14, 2008


The opinion of the court was delivered by: Ambrose, Chief District Judge



Pending is a Motion to Dismiss for failure to prosecute filed by Appellees, Global Industrial Technologies, Inc. and Harbison-Walker Refractories Company. (Docket No. 4). Appellant, Ash Trucking Company, Inc., filed a Response and a Supplemental Response. (Docket Nos. 7 and 8). Thereafter, Appellees were granted leave to filed a Reply Brief. (Docket No. 13). Based on my opinion set forth below, Appellees' Motion (Docket No. 4) is granted.


I. Background

Appellant, Ash Trucking Company, Inc., filed claims in a bankruptcy action filed by Harbison-Walker Refractories Company ("Harbison") and its parent, Global Industrial Technologies, Inc. ("Global") (collectively referred to as "Appellees"), relating to equipment sold by Debtors to Ash Trucking. Debtors filed objections to the claims based on the statute of limitations. Ash Trucking responded to the objections. On November 2, 2005, the Bankruptcy Court issued a Memorandum Opinion and Order ("the November 2, 2005, Order") sustaining the objections and disallowed the claims filed by Ash Trucking as time barred. (Docket No. 1-9). The November 2, 2005, Order was e-filed*fn1 and mailed to counsel of record. Id.

On November 16, 2005, Ash Trucking filed a Motion to Set Aside Order requesting the Bankruptcy Court set aside its order dated November 2, 2005.*fn2 (Docket No. 1-10). Ash Trucking sought this relief based on the statement that its counsel had not received notice of the November 2, 2005, Order in time to file a notice of appeal. Id. The Bankruptcy Court issued an Order on November 29, 2005, denying the Motion to Set Aside, stating in part as follows:

There are no facts, declaration or affidavit to support the bald assertion that "copies of the Memorandum Opinion and Order were not timely received by counsel for Ash Trucking in order to file any Notice of Appeal." Moreover, the fact that Mr. Ezzell may no longer be located at his former firm (as counsel to Ash Trucking) was never previously communicated to the Court nor was a change of counsel or address filed. The docket and opinion both reflect that Mr. Ezzell was served by mail on November 2, 2005. The relief requested is not warranted.

The Motion is DENIED.

(Docket No. 1-13). Ash Trucking filed a notice of appeal of the November 29, 2005, Order. (Docket No. 1-14).

I vacated the November 29, 2005, Order, not on the merits, but merely because the Bankruptcy Court did not order a response to the Motion or hold a hearing so as to perform an analysis under Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380 (1993). (Docket No. 1-18). On remand, the Bankruptcy Court performed an analysis under Pioneer, and on September 21, 2007, found that Appellant failed to establish excusable neglect for failure to timely file an appeal. (Docket No. 1-19). In particular, the Bankruptcy Court noted that "Mr. Getty has always been identified as counsel for Ash Trucking and was, and continues to be, served with all notices pertaining to his client." (Docket No. 1-19, p. 5). "We also notice that the law firm with which Mr. Getty is associated changed its name more than once during the course of the litigation over Ash Trucking's claim but the address did not change and in every name change Mr. Getty's name is listed first." Id. (emphasis in original, footnotes omitted). "[L]ack of notice of entry of an order '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....'" Id. at p. 9, quoting Fed. R. Bank. P. 9002(a). "One thing he could have done, but did not do, was to monitor the docket. It is counsel's responsibility to monitor the docket. See, e.g. In re Barbel, 212 Fed.Appx. 87, 89 (3d Cir. 2006); In re Taylor, 217 B.R. 465, 469 (Bankr. E.D. Pa. 1998)." Id.

Appellant filed its Notice of Appeal of the September 21, 2007, Order in the bankruptcy court on September 28, 2007. See, Docket No. 1. Pursuant to Rule 8006, a Statement of Issues to be Presented is due within ten (10) days of filing a Notice of Appeal. Fed. R. Bank. P. 8006. To date, Appellant has never filed a Statement of Issues on Appeal nor has it filed a request for an extension of time to file it late. It has, however, attached a proposed Statement of Issues to be Presented to its Response to the Motion to Dismiss. See, Docket No. 7-4 (Exhibit C).

A Letter of Transmission to the District Court filed on the bankruptcy docket was sent on October 24, 2007. (Docket No. 1-27).

The Notice of Appeal was entered on the docket in this Court on October 25, 2007. Id. At that time, Appellant's counsel was registered with the Court for purposes of receiving notices of electronic filings as and See, Exhibit 1. Appellant's counsel was notified of the docketing of the Notice of Appeal by a notice of electronic filing ("NEF") on October 25, 2007, at 9:35 a.m. See, Exhibit 1. Therein, Appellant's counsel was informed that the "briefing will be due in accordance with Bankruptcy Rule 8009*fn3 ...Appellant Brief due by 11/9/07." (Docket No. 1). As of ...

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