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Olick v. Kearney

June 9, 2010

IN RE: THOMAS W. OLICK, APPELLANT,
v.
JAMES KEARNEY, ET AL., APPELLEES.



The opinion of the court was delivered by: Yohn, J.

Memorandum

Thomas Olick, pro se, moves for reconsideration of the court's February 8, 2010, dismissal of his bankruptcy appeal. The court dismissed the appeal for failure to file a timely designation of items to be included in the record on appeal and a statement of the issues to be presented pursuant to Federal Rule of Bankruptcy Procedure 8006. Olick submitted the designation and the statement to the court on February 16, 2010. He argues in his motion for reconsideration of my dismissal order that the deadline for filing was on that date. Although I conclude that the deadline was, in fact, on February 8, 2010, Olick's motion for reconsideration also alleges that his failure to file by that date was not in bad faith and that the clerk's office was inaccessible to him until February 16, 2010, circumstances that mitigate against dismissal as a sanction for his eight-day delay in filing. As a result, I will grant the motion and reinstate Olick's appeal.

I. Factual and Procedural History

Olick appeals from the bankruptcy court's disposition of two adversary proceedings that he initiated against his former employer, the Knights of Columbus ("the Knights"); his former health insurer, the Aetna Life Insurance Company ("Aetna"); and two individual Knights employees, James Kearney and Thomas Jenkins. Olick's claims included breach of contract, employment discrimination and retaliation, and violations of the Employee Retirement Income Security Act ("ERISA") and the Consolidated Omnibus Budget Reconciliation Act ("COBRA"). The bankruptcy court had non-core jurisdiction over the proceedings because any recovery was to be used to fund Olick's Chapter 13 bankruptcy plan.

On December 19 and 22, 2008, the bankruptcy court held a trial on Olick's COBRA claims against the Knights, an equitable ERISA claim against the Knights, and employment retaliation claims against the Knights and Kearney.*fn1 On December 28, 2009, the bankruptcy court entered judgment in favor of Olick on his retaliation and COBRA claims against the Knights but against him on his other remaining claims. A seventy-one-page opinion accompanied the judgment. See Olick v. Kearney, Adv. No. 07-0060 (Bankr. E.D. Pa. Dec. 28, 2009).

Olick filed a timely notice of appeal on December 31, 2009. After filing the notice of appeal, however, Olick also filed a motion to reconsider in the bankruptcy court on January 4, 2010. See Motion to Reconsider, Olick, Adv. No. 07-0060, Docket Entry No. 397 ("First Motion for Reconsideration"). The First Motion for Reconsideration did not state any grounds for reconsideration because, although Olick had learned of the bankruptcy court's December 28, 2009, judgment, he allegedly had not yet received the court's opinion.*fn2 Olick stated that he would submit an amended motion to reconsider once he had "received and studied" the bankruptcy court's opinion. On January 21, 2010, having not yet received an amended motion to reconsider or any further communication from Olick regarding the status of that amended motion, the bankruptcy court entered an order filed January 20, 2010, denying the First Motion for Reconsideration. See Order, Olick, Adv. No. 07-00060, Docket Entry No. 411. A copy of that order was mailed to Olick on January 23, 2010. See Certificate of Mailing, Olick, Adv. No. 07-00060, Docket Entry No. 414.

On January 22, 2010, the day after the bankruptcy court entered its order denying the First Motion for Reconsideration but before Olick had received a copy of that denial, Olick filed an amended motion for reconsideration. See Amended Motion to Reconsider the Final Order of 12/28/2009, Olick, Adv. No. 07-00060, Docket Entry No. 412 ("Amended Motion for Reconsideration").*fn3 Unlike the First Motion for Reconsideration, the Amended Motion for Reconsideration contained a discussion of the grounds for reconsideration. The bankruptcy court denied the Amended Motion for Reconsideration by order filed January 22, 2010, and entered on January 25, 2010, on the merits and because the Amended Motion for Reconsideration was not accompanied by the notice form as required by Local Bankruptcy Rule 9014-3. See Order, Olick, Adv. No. 07-00060, Docket Entry No. 416. The bankruptcy court's order also prohibited Olick from filing any further motions for reconsideration. However, the court did not send a copy of that order to Olick until January 27, 2010. See Certificate of Mailing, Olick, Adv. No. 07-00060, Docket Entry No. 419.

On January 28, 2010, Olick filed a motion to reconsider, which attacked the bankruptcy court's denial of the First Motion for Reconsideration. Motion to Reconsider the Court's Order of 1/20/10, Olick, Adv. No. 07-00060, Docket Entry No. 420 ("Third Motion for Reconsideration"). Olick had apparently mailed the motion to the bankruptcy court on January 26, 2010, the day before the bankruptcy court denied the Amended Motion for Reconsideration. In his Third Motion for Reconsideration, Olick argued that, before denying the First Motion for Reconsideration, the bankruptcy court had not given him sufficient time to file his Amended Motion for Reconsideration in light of mail delays, his "perilous" health condition and long work hours, and the demands of related court proceedings. The bankruptcy court entered an order denying Olick's Third Motion for Reconsideration on January 29, 2010. See Order, Olick, Adv. No. 07-00060, Docket Entry No. 421. The bankruptcy court declined to impose sanctions on Olick for filing the Third Motion for Reconsideration because, at the time that he sent in that motion, Olick had likely not yet learned of the disposition of his Second Motion for Reconsideration and the accompanying prohibition on further such motions. A copy of the court's order appears to have been sent to Olick by first-class mail on February 1, 2010. See Certificate of Mailing, Olick, Adv. No. 07-00060, Docket Entry No. 425.*fn4

On February 8, 2010, noting that Olick had not yet filed a statement of issues and a designation of items to be included in the record as required by Federal Rule of Bankruptcy 8006, this court summarily dismissed Olick's appeal. Olick timely moved for reconsideration of that order on February 16, 2010. On the same day Olick also filed with this court a statement of issues on appeal and a designation of items to be included in the record on appeal as required by Rule 8006. Defendants have objected to Olick's motion to reconsider and Olick has submitted a reply.

II. Discussion

Olick argues in his motion for reconsideration that: 1) the time period for filing his Rule 8006 documents started when the order denying his Third Motion to Reconsider was entered, and 2) he was unable to file his Rule 8006 documents before February 16, 2010, because of snowstorms that rendered him unable to drive to the clerk's office, snow-related court closings, and a federal holiday on February 15, 2010. Although I conclude that Olick's first argument is without merit, I find that the late filing of his Rule 8006 documents was the result of excusable neglect and that he is therefore entitled to an extension of time to file. As a result, I will grant Olick's motion for reconsideration and reinstate Olick's appeal.

A. Olick's Rule 8006 Documents Were Untimely Under Rule 8006

Pursuant to Federal Rule of Bankruptcy Procedure 8006, Olick was required to file a designation of the items to be included in the record on appeal and a statement of issues to be presented on appeal within fourteen days after the latest of the following dates: (1) filing of a notice of appeal, (2) entry of an order granting leave to appeal, or (3) "entry of an order disposing of the last timely motion outstanding of a type specified in [Federal Rule of Bankruptcy Procedure] 8002(b)," which includes motions for reconsideration. Fed. R. Bankr. P. 8006 (emphasis added).*fn5 Motions for reconsideration must be filed "no later than 14 days after entry of judgment," see Fed. R. Bankr. P. 9023, a deadline that cannot be extended, see Fed. R. Bankr. P. 9006(b)(2). I conclude that only Olick's First and Amended Motions for Reconsideration were timely outstanding motions for the purposes of Rule 8006 and that the deadline for submitting Rule 8006 documents therefore fell on February 8, 2010, fourteen days after the bankruptcy court entered its order disposing of the Amended Motion for Reconsideration.

Olick's First Motion for Reconsideration, which was filed only seven days after the bankruptcy court entered its judgment, is undisputedly a timely outstanding motion for the purposes of Rule 8006. The Amended Motion for Reconsideration also is a timely outstanding motion because it was intended to amend the First Motion for Reconsideration, despite the fact that it was filed over fourteen days after the entry of judgment and after the bankruptcy court had already denied the First Motion for Reconsideration, because the bankruptcy court's ...


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