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Ginsburg v. Birenbaum

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


May 14, 2008

STEVEN D. GINSBURG, ON BEHALF OF THE VERTICAL GROUP, INC. AND STEVEN D. GINSBURG, APPELLANT,
v.
DAVID J. BIRENBAUM, APPELLEE.

The opinion of the court was delivered by: Judge Nora Barry Fischer

(Appeal Related to: Bankruptcy Case No. 05-20640 and Adversary Proceeding No. 05-2506)

MEMORANDUM ORDER

This matter is before the Court on Appellant's Motion Under Rule 60 (a) and (b) for Relief from the Memorandum Order of March 27, 2008 and Memorandum of Law in Support [16], filed by Appellant Steven D. Ginsburg on April 1, 2008. On April 17, 2008, Appellee David J. Birenbaum filed Appellee's Response to Motion Under Rule 60 (a) and (b) for Relief from the Memorandum Order of March 27, 2008 and Memorandum of Law in Support (Docket No. 18).

In his motion, Appellant seeks reconsideration of the Court's March 27, 2008 Memorandum Order, in which the Court denied Appellant's appeal based on his failure to comply with Bankruptcy Rule 8006.*fn1 In support, Appellant essentially proffers two arguments: (1) Appellant complied with Rule 8006 and "had no notice that the transcript was not properly before the District Court," (Docket No. 16 at ¶1), and (2) assuming that Appellant violated Rule 8006, dismissal constitutes a harsh sanction and excusable neglect warrants relief, (Docket No. 16 at ¶3).*fn2 Based thereon, Appellant requests that the Court vacate its March 27, 2008 Memorandum Order and reach the merits of its bankruptcy appeal.

While the Appellant technically violated Bankruptcy Rule 8006 by failing to file the transcript, the Court finds that Appellant has cured this deficiency by promptly filing the same. (See Docket No. 17) ("Transcript of Bankruptcy Court Hearing on March 8, 2006"). In addition, and more significantly, the Appellant has demonstrated by way of documentary evidence that he, in fact, ordered a transcript from the Bankruptcy Court on or about July 17, 2006. (See Docket No. 16-3). Thus, in the interests of justice and in the interests of hearing an appeal on the merits, the Court finds that excusable neglect exists and therefore, the Court intends to grant the instant motion for reconsideration, vacate its March 27, 2008 Memorandum Order, and subsequently address the appeal on the merits.

However, on April 28, 2008, with the instant motion for reconsideration pending, Appellant filed a Notice of Appeal. (See Docket No. 19). While "[t]he filing of a notice of appeal does not divest a district court of jurisdiction to entertain a Rule 60(b) motion," United States v. Contents of Accounts Numbers 3034504504 and 144-07143 at Merrill Lynch, Pierce, Fenner and Smith, Inc., 971 F.2d 974, 988 (3d Cir. 1992) (quoting Main Line Fed. Savs. & Loan Assoc. v. Tri-Kell, Inc., 721 F.2d 904, 906 (3d Cir. 1983)), if a lower court intends to grant a Rule 60(b) motion while a notice of appeal is pending, the proper procedure is as follows: "If that court [i.e., the lower court] indicates that it will grant the motion [under Rule 60], the appellant should then make a motion in this court [i.e., the appellate court] for a remand of the case in order that the District Court may grant the motion ... ." Tri-Kell, 721 F.2d at 906 (quoting Smith v. Pollin, 194 F.2d 349, 350 (D.C. Cir.1952)). Shortly after Tri-Kell, the U.S. Court of Appeals for the Third Circuit reaffirmed this procedure in further detail:

Most Courts of Appeals hold that while an appeal is pending, a district court, without permission of the appellate court, has the power both to entertain and to deny a Rule 60(b) motion. If a district court is inclined to grant the motion or intends to grant the motion, those courts also hold, it should certify its inclination or its intention to the appellate court which can then entertain a motion to remand the case. Once remanded, the district court will have power to grant the motion, but not before.

Venen v. Sweet, 758 F.2d 117, 123 (3d Cir. 1985); see also Hancock Industries v. Schaeffer, 811 F.2d 225, 240 (3d Cir. 1987) (same); Contents of Accounts Numbers, 971 F.2d at 988 (discussing that a district court retains the power to deny a Rule 60(b) motion while a notice of appeal is pending or "to notify [appellant] that it would, if given the power, grant the motion") (citations omitted).*fn3 Nearly all the courts of appeal are in accord. See Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992); Fobian v. Storage Technology Corp., 164 F.3d 887, 892 (4th Cir. 1999); Winchester v. United States Attorney for S. Dist. of Texas, 68 F.3d 947, 949 (5th Cir. 1995); Brown v. United States, 976 F.2d 1104, 1110-11 (7th Cir. 1992); Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (8th Cir. 1991); Aldrich Enter., Inc. v. United States, 938 F.2d 1134, 1143 (10th Cir. 1991); Hoai v. Vo, 935 F.2d 308, 311-12 (D.C. Cir. 1991).

In line with the above procedure, the Court hereby certifies its intention to grant Appellant's Motion Under Rule 60 (a) and (b) for Relief from the Memorandum Order of March 27, 2008 and Memorandum of Law in Support [16] and address the merits of the appeal if the instant matter is remanded from the U.S. Court of Appeals for the Third Circuit.*fn4 However, unless the case is remanded, this Court is without jurisdiction to grant the Rule 60(b) motion and address the merits of the appeal. See Harris v. City of Philadelphia, No. CIV. A. 82-1847, 1994 WL 408231, at *4 (E.D. Pa. June 28, 1994).

Nora Barry Fischer United States District Judge

The Honorable Bernard Markovitz United States Bankruptcy Judge


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