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Jackson v. President Casinos, Inc.: BANKRUPTCY | CIVIL PROCEDURE - no abuse finding lawyer's emergency appendectomy not excusable neglect

1 The Honorable Kathy A. Surratt-States, Bankruptcy Judge, United States
Bankruptcy Court for the Eastern District of Missouri.
United States Bankruptcy Appellate Panel
No. 08-6025
In re: President Casinos, Inc., *
Debtor *
Alma Jackson, * Appeal from the United States
* Bankruptcy Court for the
Creditor - Appellant * Eastern District of Missouri
v. **
President Casinos, Inc., *
Debtor - Appellee *
Submitted: November 7, 2008
Filed: December 1, 2008
Before FEDERMAN, MAHONEY, and VENTERS, Bankruptcy Judges
FEDERMAN, Bankruptcy Judge
Creditor Alma Jackson appeals from the Bankruptcy Courts1 Order denying
her Motion for Relief from Order Pursuant to Rule 9024 of the Federal Rules of
Bankruptcy Procedure as to the Order Relating to Post Petition Personal Injury
2 Fed. R. Civ. P. 60(b), made applicable to this bankruptcy case pursuant to Fed.
R. Bankr. P. 9024.
Claims Identified in Omnibus Objection dated May 30, 2007 (the Rule 9024
Motion). In sum, Jackson seeks relief from the Courts denial of her post-petition
personal injury claim against the Debtor because she did not timely file certain
documents as required by Court Order. Because the Bankruptcy Court did not abuse
its discretion in finding that Jackson failed to demonstrate excusable neglect under
Rule 60(b),2 we affirm.
On June 20, 2002, President Casinos, Inc. (PCI) and its wholly-owned
subsidiary, President Riverboat Casino-Missouri, Inc. (PRC-MO), and several other
affiliated companies (collectively, the Debtors) filed voluntary Chapter 11
bankruptcy petitions. The cases are being jointly administered, and the Debtors
continue to operate as debtors-in-possession. PCI serves as the Distribution Trustee
under a Distribution Trust established pursuant to the PRC-MO Chapter 11 Plan,
which became effective on December 20, 2006. In its role as Distribution Trustee,
PCI has the authority to, among other things, object to disputed claims against the
PRC-MO estate and prosecute or settle such objections.
Jackson is the holder of a postpetition claim against PRC-MO based on an
alleged personal injury she sustained at PRC-MOs premises (the Jackson Claim).
On March 22, 2007, PCI, in its role as Distribution Trustee, filed a First Omnibus
Objection to Administrative (Post-Petition) Claims filed Against President Riverboat
Casino-Missouri, Inc. (the Omnibus Objection). The Jackson Claim was among
those claims objected to in the Omnibus Objection, on the basis that PRC-MO denied
any liability for the claim. The parties do not dispute that the Jackson Claim was
subject to the Bankruptcy Courts Order Establishing Mediation Procedures
Applicable to Personal Injury and Tort-Related Claims (the Mediation Procedures
Order), which required them to refer the underlying personal injury claim to
mandatory mediation. In compliance with the Mediation Procedures Order, on or
about March 22, 2007, PCI served Jackson with a Notice of Objection to Personal
Injury Claim and Notice of Proposed Mediator and Opportunity to Object (the
Notice), along with a copy of the Mediation Procedures Order, which, inter alia,
required Jackson to submit a Mediation Statement within forty-five days.
On April 30, 2007, the Bankruptcy Court entered an Order on Omnibus
Objection to Administrative (Post-petition) Claims Filed Against President Riverboat
Casino-Missouri, Inc. (the Omnibus Order), which reiterated that Jacksons Claim
was in mediation and that Jackson was required to file her Mediation Statement no
later than May 7, 2007, or risk dismissal of the Claim. When Jackson failed to submit
a Mediation Statement by the May 7, 2007 deadline, the Bankruptcy Court entered,
on May 30, 2007, an Order Relating to Post-Petition Personal Injury Claims
Identified in Omnibus Objection (the PI Claims Order) in which the Court
disallowed the Jackson Claim in its entirety for her failure to submit a Mediation
Statement and otherwise timely prosecute her claim against the estate. Jackson does
not dispute that her Mediation Statement was due by May 7, or that she failed to
comply with that deadline.
On June 8, 2007, Jackson filed a timely Motion to Reconsider the PI Claims
Order (the Motion to Reconsider), stating briefly that her attorney, through
oversight, had failed to deliver a timely Mediation Statement to the mediator, that the
attorney learned of the oversight upon returning from emergency appendectomy,
and that the Mediation Statement had been hand-delivered to the mediators office on
June 4, 2007. PCI objected to the Motion to Reconsider. On July 10, 2007, the
Bankruptcy Court entered an Order denying the Motion to Reconsider. Jackson did
not appeal from the Order denying the Motion to Reconsider, or the PI Claims Order
denying her Claim.
3 Watkins v. Lundell, 169 F.3d 540, 543-44 (8th Cir. 1999).
Rather, on August 29, 2007, Jackson filed the instant Rule 9024 Motion,
accompanied by an Affidavit of Jacksons attorney, Michael McGlynn. In essence,
Jackson seeks relief from the PCI Claims Order and the Order denying the Motion to
Reconsider, and asks that she be allowed to file the Mediation Statement out of time,
based on excusable neglect under Rule 60(b).
According to Mr. McGlynns Affidavit, he practices in a three-person law firm
where he is solely responsible for his own files and states that he had no back-up to
catch the oversight, apparently referring to his missing the deadline for filing the
Mediation Statement. He further states, I had emergency appendectomy surgery at
Barnes Hospital, and the day I returned to the office I learned that an order was
entered striking the claim due to the failure to tender to the mediator the mediation
materials (medical records, bills, theory of the case). He also says that he was
unaware of any concern by the mediator or attorney for the Debtor that the materials
had not been received, or of any request to strike the claim. McGlynn further states
that [t]here was an oversight in that the date to present the materials to the mediator
was not calendared, and [he] was unaware of any concern until the day [he] returned
to [his] office from surgery. He says that he immediately collected the materials and
hand-delivered them to the mediator that same day, June 4.
PCI opposed the Rule 9024 Motion and, on July 3, 2008, the Bankruptcy Court
denied it. Jackson argues that the Bankruptcy Court erred in doing so.
We review a determination to set aside a judgment under Rule 60(b) for abuse
of discretion.3
4 Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004).
5 United States v. Mosbrucker, 340 F.3d 664, 665 (8th Cir. 2003) (Rule 60(b)
provides for relief only under exceptional circumstances and is not intended to substitute
for a timely appeal) (citation omitted).
6 Arnold v. Wood, 238 F.3d 992 (8th Cir. 2001) (denial of motion for relief from
judgment was not abuse of discretion where motion largely reasserted contentions made
in litigants earlier motions); Carpenters Dist. Council of Kansas City Pension Fund v.
Graceland Indus., Inc., 140 Fed. App. 637, 2005 WL 1907061 at *1 (8th Cir. 2005)
Rule 60(b) provides, in relevant part, that, on motion and just terms, the court
may relieve a party or its legal representative from a final judgment, order, or
proceeding for mistake, inadvertence, surprise, or excusable neglect. The Order
from which Jackson ultimately seeks relief is the PI Claims Order denying her Claim,
asserting that her attorneys failure to timely file the Mediation Statement was a result
of excusable neglect. As the Debtor contends, however, Jackson had the opportunity
to argue that the neglect in filing the Mediation Statement was excusable when she
first moved for reconsideration of the PI Claims Order, and, therefore, this Rule 9024
Motion is an improper attempt to appeal from that Order or the Order denying her
Motion to Reconsider. An appeal of the denial of a Rule 60(b) motion does not raise
the underlying judgment for consideration and review and cannot substitute for a
timely appeal from that judgment.4 If an alleged error could have been corrected by
appeal, a motion for reconsideration or relief must be made within the time for
appeal.5 As a result, to the extent that Jackson contends that the Bankruptcy Court
should have allowed her to file her Mediation Statement out of time, she should have
raised that issue through a timely appeal of the Order denying her Motion to
Reconsider. Further, through her Rule 9024 Motion, Jackson simply expands upon
the same argument she made in the Motion to Reconsider the denial of her Claim
i.e., that she should be allowed to file the Mediation Statement out of time due to her
attorneys illness which is another impermissible use of Rule 60(b).6 As a result, the
(unpublished) (The purpose of Rule 60(b) relief is not to afford the parties an
opportunity to reargue the merits of their case.); F.D.I.C. v. United Pacific Ins. Co., 152
F.3d 1266, 1272 (10th Cir. 1998) (Rule 60(b) is not available to allow a party merely to
reargue an issue previously addressed by the court when the reargument merely advances
new arguments or supporting facts which were available for presentation at the time of
the original argument.) (citation and internal quotation marks omitted).
7 Pioneer Investment Services Company v. Brunswick Associates L.P., 507 U.S.
380, 381, 113 S.Ct. 1489, 1490-91, 123 L.Ed.2d 74 (1993).
8 Id. 507 U.S. at 394, 113 S.Ct. at 1497 (internal quotation marks omitted).
9 In re Payless Cashways, Inc., 230 B.R. 120, 138 (B.A.P. 8th Cir. 1999) (citing
Pioneer, 507 U.S. at 395, 113 S.Ct. at 1489).
10 Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004).
Bankruptcy Court could have properly denied the Rule 9024 Motion on those
Nevertheless, although the Bankruptcy Court did not need to address the merits
of the Rule 9024 Motion, the Court did so, finding that Jackson had not proven
excusable neglect in failing to file the Mediation Statement by the deadline. As
Jackson points out, Congress plainly contemplated that the courts would be permitted
to accept late filings caused by inadvertence, mistake, or carelessness, not just those
caused by intervening circumstances beyond the partys control.7 [E]xcusable
neglect is understood to encompass situations in which the failure to comply with a
filing deadline is attributable to negligence.8 The determination as to whether
neglect is excusable is an equitable one, taking into account all relevant circumstances
surrounding the partys omission.9 However, relief under Rule 60(b) is an
extraordinary remedy.10 Factors to consider in this determination include (1) the
danger of prejudice to the debtor; (2) the length of the delay and its potential impact
on judicial proceedings; (3) the reason for the delay, including whether it was within
11 Id.
12 In re Gehl, 324 B.R. 756, 759 (Bankr. N.D. Iowa 2005).
13 Id. (citing Gibbons v. U.S., 317 F.3d 852, 855 (8th Cir. 2003)).
the reasonable control of the movant; and (4) whether the movant acted in good
In sum, the Bankruptcy Court found that granting the Rule 9024 Motion posed
no danger of prejudice to the Debtor because doing so would simply permit Jackson
to mediate her claim, which was the process that the Debtor preferred for the personal
injury claimants. The Court also found that the length of the delay, less than ninety
days from the entry of the PI Claims Order to the filing of the Rule 9024 Motion, was
minimal, and that Jackson had acted in good faith, all factors weighing in favor of
granting the Rule 9024 Motion.
However, the Court also found that allowing Jackson to prevail on the Rule
9024 Motion by making essentially the same argument made in the Motion to
Reconsider would have a negative impact on judicial economy. In other words, the
Court found that it would be inherently unfair to the Debtor to give Jackson a second
try at arguing that the Jackson Claim should not be disallowed.
Further, noting that the third factor, i.e., the reason for the delay, is the most
important factor considered by the courts,12 the Bankruptcy Court found Mr.
McGlynns explanation to be insufficient to warrant a finding of excusable neglect.
As Jackson suggests, and as the Bankruptcy Court said, illness of counsel may be
sufficient for a finding of excusable neglect, but the illness must be of such character
and magnitude that counsel was both physically and mentally incapacitated during the
crucial period of time.13
14 Indeed, Mr. McGlynn indicates in his Affidavit that he returned to his office
from the surgery around June 4, which was when he discovered that the Jackson Claim
had been disallowed and he hand-delivered the materials to the mediator.
15 Id. (citing Gibbons v. U.S., 317 F.3d at 855).
16 739 F.2d 464 (9th Cir. 1984).
17 Accord Gibbons v. U.S., 317 F.3d at 855 (finding no excusable neglect, in part
because the attorneys affidavit contained no specific information as to the nature of her
No one disputes that Mr. McGlynn had an emergency appendectomy at some
point around the relevant time period. However, even when he filed his Affidavit in
support of the Rule 9024 Motion, Mr. McGlynn gave the Bankruptcy Court no details
concerning his illness, such as the date when surgery occurred or how long he was
incapacitated as a result of the illness. He does not even say whether the
appendectomy occurred before or after the May 7 deadline for filing the Mediation
Statement.14 As the Bankruptcy Court said, Mr. McGlynn had forty-five days in which
to file the Mediation Statement, and [t]he fact that [he] became ill does not excuse
the period of time when [he] was not ill.15 Particularly given the lack of specificity
as to his illness, the Bankruptcy Court did not abuse its discretion in finding that Mr.
McGlynn failed to show that his illness constituted excusable neglect.
Jackson cites Islamic Republic of Iran v. Boeing Company16 in support of her
argument that her attorneys illness constitutes excusable neglect. In that case, the
Ninth Circuit affirmed the district courts finding that counsels diarrhea, vomiting
and five-pound weight loss over a short period, coupled with the attorneys secretarys
illness, amounted to excusable neglect for failing to timely file a notice of appeal.
Jackson suggests that her attorneys appendicitis is far more serious than the illness
described in that case. That may have been true, and, if so, the Bankruptcy Court may
have so found when initially presented with the Motion for Reconsideration, but Mr.
McGlynn provided the Bankruptcy Court with almost no information about his
illness.17 Moreover, Mr. McGlynn also concedes that his missing the deadline was,
illness, treatment, and/or rehabilitation).
18 Hunter v. Underwood, 362 F.3d at 475.
19 See, e.g., Gibbons v. U.S., 317 F.3d at 855 (finding no excusable neglect, in part
because the attorney failed to take appropriate measures for the administration of her
cases upon her realization that her illness would preclude her from personally attending to
them); InvisioNet Computer Serv., Inc. v. ECS Funding LLC, 288 B.R. 163, 165-66 (D.
Me. 2002) (finding no excusable neglect when counsel failed to calendar a deadline).
at least in part, due to an oversight, namely, that he had not calendared it. In view
of the fact that relief under Rule 60(b) is an extraordinary remedy,18 we cannot say that
the Bankruptcy Courts determination that Mr. McGlynns explanation did not meet
the standard for excusable neglect was an abuse of discretion.19
For the foregoing reasons, the Bankruptcy Courts denial of Jacksons Rule
9024 Motion was not an abuse of the Courts discretion. The Order denying
Jacksons Motion for Relief from Order Pursuant to Rule 9024 of the Federal Rules
of Bankruptcy Procedure as to the Order Relating to Post Petition Personal Injury
Claims Identified in Omnibus Objection Dated May 30, 2007, is, therefore,


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