The Great Atlantic & Pacific Tea Co., Inc.
20-2659
2d Cir.Jun 23, 2021Background
- Appellant Katerene Halkias appealed the denial of her bankruptcy-court motion for relief from the automatic stay and then failed to file her opening brief to the district court on time.
- Halkias did not seek an extension until after the filing deadline had passed and after the appellee moved to dismiss for failure to timely file.
- The district court dismissed her appeal for failure to timely file and found she did not show "excusable neglect." The Second Circuit affirms that dismissal.
- The district court also found Halkias’s underlying appeal lacked merit: an affidavit of service from the debtor’s claims agent created a presumption that notice of the stay lift was mailed and received, and Halkias’s counsel’s contrary claim did not rebut that presumption.
- The court applied the excusable-neglect framework from Pioneer and required the late claimant to carry the burden of proving excusable neglect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether late filing could be excused as "excusable neglect" | Halkias: counsel had reasons justifying late filing (claimed lack of notice) and should be excused | National Union: no timely extension requested; motion to dismiss filed; no excusable neglect shown | Dismissal affirmed; Halkias failed to prove excusable neglect under Pioneer |
| Whether district court abused discretion by dismissing without considering lesser sanctions | Halkias: dismissal is harsh; court should consider lesser sanctions | National Union: dismissal was appropriate given procedural defaults and weak merits | No abuse of discretion; district court permissibly dismissed after weighing factors and finding lack of merit |
| Whether service affidavit established notice that stay was lifted | Halkias: contended counsel did not receive notice | Debtor/National Union: affidavit of service creates presumption of mailing and receipt | Presumption of receipt applied (Hagner); Halkias’s contrary assertion insufficient to rebut |
| Merits of stay-lift ruling | Halkias: relief from stay was improper | Debtor/National Union: stay-lift was properly noticed and effective | District court correctly concluded underlying appeal lacked merit; affirmed |
Key Cases Cited
- Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380 (1993) (sets excusable-neglect standard for late filings)
- In re Enron Corp., 419 F.3d 115 (2d Cir. 2005) (places burden on late claimant to prove excusable neglect)
- Dodson v. Runyon, 86 F.3d 37 (2d Cir. 1996) (dismissal is a harsh remedy requiring careful weighing)
- Shepherd v. Annucci, 921 F.3d 89 (2d Cir. 2019) (failure to consider lesser sanctions generally is an abuse of discretion)
- Hagner v. United States, 285 U.S. 427 (1932) (presumption that properly mailed letters are received)
- In re Great Atl. & Pacific Tea Co., Inc., 618 B.R. 57 (S.D.N.Y. 2020) (district-court opinion dismissing Halkias’s appeal and analyzing excusable neglect and notice)