Appeal from the Ninth Circuit Bankruptcy Appellate Panel. BAP No. AZ-90-1497. Russell, Volinn, and Perris, Bankruptcy Judges, Presiding.
Before: Goodwin, D.w. Nelson, and Reinhardt, Circuit Judges.
Sunway Systems, Inc. ("Sunway") appeals the Bankruptcy Appellate Panel's (BAP) denial of its Fed. R. Civ. P. 60(b) motion to set aside the BAP's dismissal of its appeal. The BAP dismissed Sunway's appeal for failure to prosecute based on Sunway's failure to file a response to the BAP's order to show cause why the appeal should not be dismissed as untimely. We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we reverse and remand.
On April 16, 1990, Sunway filed its notice of appeal from the bankruptcy court's judgment entered April 3, 1990. On June 14, 1990, the BAP issued a "Notice of Deficient Appeal and Possible Dismissal" to Sunway. In the notice, the BAP indicated that Sunway's appeal appeared to be untimely because it was filed more than 10 days after the judgment was entered. The BAP ordered Sunway to respond within 20 days with legal cause why the appeal should not be dismissed as untimely.
It is undisputed by the parties that Sunway's appeal was timely under Bankruptcy Rule 8002(a) because it was filed within 10 days of a timely appeal by another party. See Bankr. R. 8002(a).*fn1 Moreover, Sunway's attorney contends that he prepared a timely response to the BAP's notice, but that through an office oversight, it was inadvertently delivered to the Arizona Bankruptcy Court rather than to the BAP. As proof that it was sent to the Bankruptcy Court within the 20-day period for filing a response with the BAP, Sunway submits a coversheet from Sunway's messenger service captioned "Response to Notice of Deficient Appeal and Possible Dismissal" stamped dated as received on June 22, 1990 by the Arizona Bankruptcy Court. The Arizona Bankruptcy Court docket sheet, however, does not indicate that any such document was ever filed or lodged on that date. Sunway speculates that the response was forwarded to the BAP, but was somehow lost in transit or misfiled. The BAP docket sheet does not indicate that any such response was ever received or filed. Approximately one year later, the BAP dismissed Sunway's appeal for failure to prosecute because no timely response was received. Sunway sought to reinstate the appeal in a motion to set aside the dismissal pursuant to Fed. R. Civ. P. 60(a) & (b)(1),(6), but the BAP denied the motion.
We review a denial of a motion to reconsider for an abuse of discretion. Redfield v. Insurance Co. of N. America, 940 F.2d 542, 544 (9th Cir. 1991); Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985).
Rule 60(a) allows the court to correct clerical mistakes. See Fed. R. Civ. P. 60(a). Here, Sunway has failed to show that the BAP committed any clerical error warranting Rule 60(a) relief. Sunway concedes that it never filed its response with the BAP. Moreover, even if we were to assume that Sunway timely submitted its response to the Arizona Bankruptcy Court, Sunway has cited no authority which would require the Arizona Bankruptcy Court to forward the response to the BAP, let alone provide the basis for Rule 60(a) relief if the court was unsuccessful in doing so. Given these circumstances, the BAP did not abuse its discretion by finding that Rule 60(a) does not provide a basis for relief.
A motion to reconsider may be brought under Rule 60(b) if the moving party can show "(1) mistake, inadvertence, surprise, or excusable neglect . . . or (6) any other reason justifying relief from operation of judgment." Fed. R. Civ. P. 60(b)(1) & (6). A Rule 60(b)(6) motion requires a showing of "extraordinary circumstances" and must be for some reason other than the five reasons preceding it under the Rule. See Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985); LaFarge Conseils et Etudes, S.A. v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1338 (9th Cir. 1986). We have held that "mistake of counsel does not constitute excusable neglect." United States v. Prairie Pharmacy, Inc., 921 F.2d 211, ...