# Petition for Writ of Certiorari — Raynor v. Myers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1139

## Text

rame Court, U.S.
om FILED

No._____ 49-645 NOV 9- 2010

OFFICE OF THE CLERK
In The

Supreme Court of the Anited States

MAUREEN K. RAYNOR and
JOHN PATRICK RAYNOR,

Petitioners,

RICHARD D. MYERS,
Chapter 7 Trustee,

Respondent.

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN P. RAYNOR
RAYNOR, RENSCH & PFEIFFER
10110 Nicholas Street, Suite 102
Omaha, Nebraska 68114
Telephone: (402) 498-4400
JRaynor@rrplawyers.com

QUESTION PRESENTED

Viewed narrowly, whether the Eighth Circuit
Court of Appeals erred and acted contrary to prece-
dent of this Court, Graham County Soil & Water
Conservation Dist. v. U.S. ex rel., Wilson, 545 US.
409, 125 S. Ct. 2444, 2550-51 (2005), by relying upen
Federal Rule of Civil Procedure 6(a) to commence a
limitation period the day after there was a complete
and present cause of action.

Viewed globally, whether the Eighth Circuit
Court of Appeals erred, through this decision, by
(1) joining in on widening the schism between this
Court and the other Circuit Courts on the issue of
law for determining limitation periods, (2) defeating
the Constitutional right of equal protection under the
law, and (3) failing to recognize the judicial hierarchy
of law by disregarding this Court’s precedent. This
Yourt has “repeatedly recognized that Congress
legislates against the standard rule”; nevertheless,
the Circuit Courts have repeatedly applied the Mod-
ern Rule. The Modern Rule deploys Federal Rule of
Civil Procedure 6(a) to find that a limitation period
commences the day after there is a complete and
present cause of action, and extends a limitation
period to the next business day when it would have
otherwise expired on a weekend or holiday.

PARTIES TO THE PROCEEDING

Petitioners are Maureen K. Raynor (“M.
Raynor”), non-debtor wife, and John P. Raynor (“d.
Raynor”), debtor and husband. Maureen Raynor was
a defendant in an adversary proceeding instigated by
Richard D. Myers, Trustee (“Trustee”) in the Chapter
7 bankruptcy proceeding of John P. Raynor (“Debt-
or”). John P. Raynor intervened in the adversary
proceeding.

DISCLOSURE STATEMENT

Counsel is a petitioner/intervener/debtor and is
the husband of the Petitioner, the defendant in the
adversary proceeding commenced by the Trustee.

11]

TABLE OF CONTENTS

Page
QUESTION PREG Fe vccseccsvcscescsscncncsvsanseaveses
PARTIES TO THE PROCEEDING .............. ree ii
DISCLOSURE STATEMENT ..... Trane one aoe eeaneeeke il
TABLE OF AUTHORITIBS ............................00. ~ 1
COPPER IIS BREA iia cisescccstiscdcas concurs Scauees pecaeaeaan 1
Fal es Bask xavscnerarce aie oe 1
STATUTES AND PROCEDURAL RULES
fgg of.” | SNe MORIERE OIE acer eek BS Cec) at aire 2
STATEMENT OF THE CASE..........................008. 5
A. Factual Background .............. PPE te SAD 8
B. Proceecivias Bel ..ec.cccvscsssessesvcsscsessssecsses 9
REASONS FOR GRANTING THE PETITION .... 11
ES Ge ADR IRE? POPES 5 onic scecitnsxcetessnesvidersrsecaied 12
Fe PE PS IE Gr cade nndccconstacrsscnvodneneeseress 14
MODERN RULE — RELIANCE UPON RULE
G(a) IS ERROR .............. suunguscuvicdraevenseapia teins 17
THE PANEL'S REASONING.................0..000.0...0... 20
THE PANEL AND STARE DECISIS .................. 22
LIMITATION STATUTES REPRESENT PUB-
Rae WE BE eos vaca ebenscras saecaaeueaniveckisenvusae cies 26

CP ee aceon ines on esdceavunovenesseapiatea aden 27

TABLE OF CONTENTS — Continued

Page
Appendix A
The Eighth Circuit’s August 23, 2010 decision
applying the Modern Rule — Jn re Raynor,
2010 U.S. App. LEXIS 17596 (8th Cir. Aug.
Di | eine ane ann ana App. 1
Appendix B
Eighth Circuit Bankruptcy Appellant Panet’s
June 4, 2009 decision applying the Modern
Rule — Jn re Raynor, 406 B.R. 375 (B.A.P. 8th
NN creer ca viekactscaecser cen tex eiocco ne aan tice App. 16
Appendix C
The Nebraska Federal District Court’s No-
vember 21, 2007 decision applying the Mod-
ern Rule — Jn re Raynor, 2007 U.S. Dist.
LEXIS 86324 (D. Neb. Nov. 21, 2007)........... App. 31
Appendix D
Nebraska Bankruptcy Court’s January 26,
2007 decision applying the Modern Rule — Jn
re Raynor, 2007 Bankr. LEXIS 172 (Bankr.
D. Neb. Jan. 26, 2007)............. Suse cemasankaio App. 40

Appendix E
The Eighth Circuit January 4, 2008 Mandate
refusing to hear the Mandamus Petition re-
questing the application of the Standard
Rule to confine lower court to its lawful ju-
PI ccasracaucedavencrsteaisisery ss sguvessadonmmasnie App. ¢

TABLE OF CONTENTS — Continued
Page

Appendix F
This Court’s rejection, after conference, of a
Writ of Certiorari contesting the Mandamus
Mandate — Raynor v. United States Dist.
Court, God UB. 1065 CAG) ono cnc cnccccccccccccsees App. 49

Appendix G
October 20, 2010 Denial of the Petition for
eg oe | | a a eee App. 50

vl

TABLE OF AUTHORITIES

Page
CASES
Anastasoff v. United States, 223 F.3d 898 (8th
Cir. 2000), rehearing en banc granted, 2000
U.S. App. LEXIS 33247 (8th Cir. 2000)............ 23, 24
Bartlik v. United States DOL, 62 F.3d 163 (6th
iad cu encekewauubaaraenonaansaces 16

Bay Area Laundry and Dry Cleaning Pension
Trust Fund v. Ferbar Corp. of Cal., 522
U.S. 192, 118 S. Ct. 542, 139 L. Ed. 2d 553
ean ia is aeeteedekvstasiiidasbuguunkuntasieuies passim

Chase Securities Corporation v. Donaldson, 325
U.S. 304, 65 S.Ct. 1187, 89 L.Ed. 1628

Cee eg ae ahs load encwhiont 26
Clark v. lowa City, 87 U.S. 583, 20 Wall. 583,

ie I © OD ain tas sce ncsscanossavadeaxcussnasersans 13, 14
Frey v. Woodard, 748 F.2d 173 (3d Cir. 1984)............ 16

Graham County Soil & Water Conservation Dist.
v. U.S. ex rel., Wilson 545 U.S. 409, 125 S. Ct.

2444, 162 L. Ed. 2d 390 (2005)......... 6, 12, 13, 17, 24
Harbor Natl Bank v. Sid Kumins, Inc., 696

a Esc cena daeuanedtaeevasdenesckseucses 16
Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, 70

Bie SE Oe © BIE oc accasacccexssssarcsenscodcvanendsosen’ 11, 24
fd. Brick Co. v. 11i., 431 U.S. 720 (1877 )......0.00000ss00000. 24

In re Olsen, 2001 Bankr. LEXIS 2142 (Bankr.
eS SY es cans cavencwenadabensdcenens 22

Vl1l

TABLE OF AUTHORITIES — Continued

Page
Lamie v. United States Trustee, 540 U.S. 526,
124 S. Ct. 1023, 157 L. Ed. 2d 1024 (2004)............ 21
Lee v. National Home Ctrs., Inc. (In re
Bodenstein), 253 B.R. 46 (B.A.P. 8th Cir. Ark.
I oor aero aunescesh cis vouueceunanes casero ee cesenrdinsssaraenaceds -
Maahs v. United States, 840 F.2d 863 (11th Cir.
I casos cen cnes ev uneaccdanentavk sor ciean cede anc te aes 16
Mader v. United States, 2010 U.S. App. LEXIS
18142 (8th Cir. Neb. Aug. 31, 2010)............... passim
Mattson v. U.S. West Communications, Inc.,
967 F.2d 259 (8th Cir. 1992) ................... 8, 18, 22, 23
McCuskey v. Central Trailer Servs., 37 F.3d
Re CGH SAT, BED vvccccccccsccscsscnsscacsesvsensnens 21, 22, 23
Reiter v. Cooper, 507 U.S. 258, 113 S. Ct. 1218,
122 L. Bd. 2d GO4 (199B)........cerccsevseees 6, 7, 12, 24, 25
Sain v. City of Bend, 309 F.3d 1134 (9th Cir.
RRR Dp ASF CIRO REL OOS RHRBE YS Pl RADE RE oe Te ET ee EAE 16
Shady Grove Orthopedic Assocs., PA. v. All-
state Ins. Co., 130 S. Ct. 1431, 176 L. Ed. 2d
AE COL isc evascats ee aati onan ere RAE A Aine PT 19
Simon v. Commissioner, 176 F.2d 230 (2d Cir.
EERIE A et AR UM eet Ree deine Ae, ge A ee 15

Thurston Motor Lines, Inc. v. Jordan K. Rand,
Litd., 460 U.S. 533, 75 L. Ed. 2d 260, 103
Pes BE FN css v crea sn nds Gad acauakanadua ee Giaieesexicnnces 26

Tribue v. United States, 826 F.2d 633 (7th Cir.

Vill

TABLE OF AUTHORITIES — Continued

Page
TRW Inc. v. Andrews, 534 U.S. 19, 122 S. Ct.
441, 151 L. Ed. 2d 339 (2001) ..eccecccececeesee 6, 7, 24, 25
Union Natl Bank of Wichita Kan. v. Lamb,
337 U.S. 38, 69 S.Ct. 911, 93 L. Ed. 1190
| amen 8, 15, 16, 17, 18
Union Pacific R. Co. v. Beckham, 138 F.3d 325
Ss a ac ana vaavevdanencens 26
United Mine Workers, International Union uv.
Dole, 870 F.2d 662 (D.C. Cir. 1989) ........................ 16
United States v. Peters, 220 F.2d 544 (10th Cir.
ce A ee eps yagi Giatekeusesucees 15
Walker v. Armco Steel Corp., 446 U.S. 740, 100
S. Ct. 1978, 64 L. Ed. 2d 659 (1980)..................0c008, 18
Western P. R. Corp. v. Western P. R. Co., 345
U.S. 247, 73 S. Ct. 656, 97 L. Ed. 986 (1953)......... 23
Wilkes v. United States, 192 F.2d 128 (5th Cir.
* THONBE Se CSCIC SEIS HUA AN yo se ee 15
Wirtz v. Peninsula Shipbuilders Assoc., 382
oc asecukvvassavvnetsdaveddceveees 16
Wood-Ivey Sys. Corp. v. United States, 4 F.3d
eo, cau caer diaccdvonscnsevediacenicsuinaine 16
STATUTES AND RULES
By re in iy a cach niisdcevenwdevionvis a, 20, 21, Z2
I a sen tueupbsisawenecnen 7,26

ee BIN iss cas dexeieceinnsasncnnvdusourdesiacsvxaevgeess 2,18

1X

TABLE OF AUTHORITIES — Continued

Page

28 UES... © a io arecictsesessese0s0s05..0, 19
29 U.S.C. © Rear pekicsoneccsccsccscse. 7, 265
49 U.S.C. © Fe Peers triticevescrccccsscces. 1,20
Bed. Fe. Ci Fe eer ihicsisiyesccscncccccscess 18
Fred. Fi. Caw. Fe ere iisediccsnssccsccsees passim
Od. FR. Core By ae ear a idacssnccesessccscessceeees 18
Fed. RR. Emery Fi Bere cata tatsateceniscscecccccscees. 4,5, 19
Fed. FR. Baaeihs Fe ies erate cnsasccecccsccsccces. 18, 19

OTHER AUTHORITIES

1 Bankruptcy Practice Handbook § 6:30 (2d
OG. ) ...0. Graham County
Soil & Water Conservation Dist. v. United States, 545
U.S. 409, 419, 125 S.Ct. 2444, 162 L. Ed. 2d 390
(2005) (“where, as the case is here, there are two
plausible constructions of a statute of limitations, we
should adopt the construction that starts the time
limit running when the cause of action .. . accrues.”).
The district court’s conclusions are consistent with
Graham County. Even if the Graham County rule of
construction were applied to the time limitation in
§ 546(a), under the Raynors’ theory, it would not
change the outcome. Avoidance actions accrue when a
debtor commences a case by filing a bankruptcy
petition, which “constitutes an order for relief... .” 11
U.S.C. § 301(b). The avoidance actions therefore
accrue on the same day as the order for relief is
issued.

The Raynors also misread the Bay Area Laundry
case, and have extrapolated a universal ru’e and
urged its application in a manner that would be
inconsistent with the plain meaning of § 546(a). Bay
Area Laundry & Dry Cleaning Pension Trust Fund uv.
Ferbar Corp. of Cal., 522 U.S. 192, 118 S. Ct. 542, 139
L. Ed. 2d 553 (1997). In Bay Area Laundry, the Court
construed a statute of limitations to avoid the absurd
result that the limitations period might begin to run
before a cause of action had ever accrued. The Court
later wrote, “The question presented in Bay Area

App. 29

Laundry was whether a statute of limitations could
commence to run on one day while the right to sue
ripened on a later day. We answered that question,
and only that question, ‘no,’ unless the statute indi-
cates otherwise.” TRW Inc. v. Andrews, 534 U.S. 19,
34 n. 6, 122 S.Ct. 441, 151 L. Ed. 2d 339 (2001)
(emphasis added). The Bay Area Laundry holding is
consistent with the district court’s conclusions.

The Raynors’ reliance on the Fighth Circuit's
McCuskey decision is similarly misplaced. McCuskey
v. Cent. Trailer Servs., Ltd., 37 F.3d 1329 (8th Cir.
1994). Because the sole issue considered by the
McCuskey court was “whether the district court erred
in concluding that the two-year statute of limitations
started to run anew when [the chapter 7 trustee] was
appointed” following the conversion of the case from
chapter 11, the court’s holding is not instructive on
the issue raised in the Raynors’ appeal. /d. at 1330-
31.

The Raynors rely heavily on our opinion in Lee v.
Natl Home Centrs., Inc. (In re Bodenstein), 253 B.R.
46 (B.A.P. 8th Cir. 2000). In Bodenstein, the issue was
whether the statute of limitations under 11 U.S.C.
§ 546(a) was equitably tolled during the pendency of
the debtors’ chapter 13 case. Although the precise
expiration of the limitation period was not related to
the holding of that case, we stated, “The Debtors filed
their petition on November 21, 1996 and the order for
relief was entered that same day. In accordance with
Section 547(a)(1)(A), the period of two years after the
entry of the order for relief expired on November 21,

App. 30

1998.” /d. at 50. In that context, we understand the
term “expire” to mean that the avoidance action could

not have been brought later than November 21, 1998

CONCLUSION

We decline to revisit the issue of the timeliness of
the trustee’s complaint because that issue has al
ready been decided by the district court. The bank

ruptcy court’s March 9, 2009 order and judgment are

affirmed.

App. 3]

APPENDIX C
2007 WL 4180713
United States District Court, D. Nebraska
In re John P. RAYNOR, Debtor
Richard D. Myers, Trustee of the John P. Raynor
Chapter 7 Bankruptcy Estate, Appellee/Plaintiff,
Maureen Raynor, Appellant/Defendant
No. 8:07CV151.
No. BK04-83112.
Adv. No. A06-8105.

Nov. 21, 2007

Alan E. Pedersen, McGill, Gotsdiner Law IK irm.
Omaha, NE, for Appellee/Plaintiff

Elizabeth M. Callaghan, William L. Biggs, Jr, Gro
Welch Law Firm, Omaha, NE, for Appellant/Defendant

MEMORANDUM AND ORDER
RICHARD G. KOPF, District Judge

This is an interlocutory appeal filed by the appellant/
defendant, Maureen Raynor, from orders that’ were
entered by the bankruptcy court denying her motion to
dismiss the Trustee’s adversary complaint and her
motion for rehearing. Ms. Raynor has elected to have
this appeal heard by the district court (filing 4). After
briefing on the issue of whether this court has jurisdic-
tion to entertain the appeal, and subsequent briefing on

the merits of this appeal, this matter 1s now ripe for

App. 32

disposition. (Filing 18, Order Granting Leave to
Appeal & Setting Briefing Schedule. )

BACKGROUND

On September 13, 2004, John PP. Raynor
(“Debtor”) filed a voluntary petition in the United
States Bankruptcy Court for the District of Nebraska,
seeking the entry of an order for relief under Chapter
1] of the United States Bankruptcy Code. (Filing 3-2,
Docket Sheet from U.S. Bankruptcy Court, District of
Nebraska, Case No. BKO4-83112.)An order of relief
was entered on September 15, 2004.’ On June 2, 2005,
the bankruptcy court issued an order converting the
case to a Chapter 7 procecding, and the Trustee was
appointed a day later. (/d.) On September 13, 2006
the second anniversary of the Debtor’s voluntary
petition filed in bankruptcy court — the Trustee filed
an adversary proceeding against Maureen Raynor,
the wife of the Debtor, the purpose of which was to
avoid alleged preferential transfers in violation. of
§ 547 of the Bankruptcy Code, other transfers pursu
ant to § 544 of the Code and the Nebraska Uniform
Fraudulent ‘Transfer Act, and unauthorized post
petition transfers. The Trustee’s adversary complaint
consisted of five causes of action four involving

alleged) pre-petition transfers, and one involving

’ “Ina voluntary bankruptcy case, the date that the petition
is filed is the date of the entry of an order for relief” 3 Bank
ruptcy Litigation § 16:49 (July 2007)

App. 33

alleged post-petition transfers. (Filing 155, US.
Bankruptcy Court, District of Nebraska, Case No.
BK04-83112; Filing 1, U.S. Bankruptcy Court, Dis-
trict of Nebraska, Case No. A06-8105.)

Maureen Raynor filed a motion to dismiss the
adversary proceeding as untimely pursuant to the
two-year statute of limitations, 11 U.S.C. § 546(a),
which p.ovides in relevant part:

(a) An action or proceeding under section
544, 545, 547, 548, or 553 of this title may
not be commenced after the earlier of —

(1) the later of —

(A) 2 years after the entry of the order for
relief;

Ms. Raynor argued that the limitations period
ran on September 12, 2006, and the adversary com-
plaint was filed one day later, September 13, 2006,
which was the second anniversary of the filing of
Debtor’s voluntary petition in bankruptcy court.

The bankruptcy court denied the motion to
dismiss, finding:

Based upon the statutory interpretation pro-
cedure identified as appropriate by the Eighth
Circuit Court of Appeals, and based upon the
expressed Congressional intent that 11 U.S.C.

App. 34

§ 546(aX1) is not jurisdictional, Rule 9006(a)y
is properly applied in the computation of
time that the Trustee must abide by when
bringing an avoidance action. In this case,
Rule 9006(a) would permit the Trustee to
begin the count on the day following the peti-
tion date and end the count on the anniver-
sary date of the petition filing. Following
that counting procedure, the Trustee’s filing
of the complaint on September 13, 2006, is
timely.

(Filing 15, U.S. Bankruptcy Court, District of Ne-
braska, Case No. AO6-8105, Memorandum on Motion
to Dismiss Adversary Proceeding at 4.) The bank-
ruptcy court denied Ms. Raynor’s motion to recon-
sider this ruling in a “text-only order.” Ud., Docket
Sheet, Filing 20.) This appeal followed.

* Rule 9006, in relevant part, provides:

In computing any penod of time prescribed or allowed
by these rules or by the Federal Rules of Civil Proce-
dure made applicable by these rules, by the local
rules, by order of court, or by any applicable statute,
the day of the act, event, or default from which the
designated period of time begins to run shall not be
included. The last day of the period so computed shall
be included, unless it is a Saturday, a Sunday, or a le-
gal holiday, or, when the act to be done is the filing of
a paper in court, a day on which weather or other
conditions have made the clerk’s office inaccessible, in
which event the period runs until the end of the next
day which is not one of the aforementioned days.

ld. (italics added).

App. 35

The parties agree that the question in this appeal
is “whether the ‘triggering event’ commences the
running of the two-year statute of limitations, or
whether the statute of limitations commences the day
after the day of the ‘triggering event’”. (Filing 13, at
2.)

kad

DISCUSSION

““When a bankruptcy court’s judgment is ap-
pealed to the district court, the district court acts as
an appellate court and reviews the bankruptcy court’s
legal determinations de novo and findings of fact for
clear error.”” In re Falcon Products, Inc., 497 F.3d
838, 840-41 (quoting In re Fairfield Pagosa, Inc., 97
F.3d 247, 252 (8th Cir.1996)). After a de novo review
of the bankruptcy court’s legal findings, I shall deny
Maureen Raynor's appeal from the bankruptcy court's
orders denying her motion to dismiss the Trustee's
adversary complaint and her motion for rehearing.

For the reasons thoroughly and clearly stated in
Judge Mahoney’s order denying Maureen Raynor's
motion to dismiss, I agree that “if the Eighth Circuit
Court of Appeals had before it the question of
whether Rule 9006(a) should be applied to 11 U.S.C.
§ 546(a), it would first determine whether § 546(a)
was jurisdictional or, alternatively, simply a statute of
limitations.’ If it determined the statute was not

As explained in Judge Mahoney's order, the Eighth Circuit
Court of Appeals has applied Fed.R.Civ.P. 6(a), a time-computation
(Continued on following page)

App. 36

jurisdictional, the counting would start per Rule
9006(a) on the day following the date the petition was
filed, and end on the anniversary date of the petition
filing,” thus making the Trustee’s adversary com-
plaint timely.

I find that, if confronted with the issue in this
appeal, the Eighth Circuit Court of Appeals would
align itself with the majority of courts that have
addressed the applicability of Rule 9006(a) to 11
U.S.C. § 546(a) and the legislative history behind
the 1994 amendments to § 546(a) to conclude that
§ 546(a) is not jurisdictional. See In re Pugh, 158 F.3d
530 (11th Cir.1998) (limitations period in 11 U.S.C.
§ 546(a) is waivable statute of limitations subject
to estoppel and equitable tolling, not jurisdictional
bar); In re General Creations, Inc., 343 B.R. 548
(Bankr. W.D.Va.2006) (Bankruptcy Rule 9006(a) gov-
erns computation of time to take action prescribed by
11 U.S.C. § 546); In re Art & Co., Inc., 179 B.R. 757
(Bankr.D.Mass.1995) (Rule 9006 applies to computation
of time in 11 U.S.C. § 546(a)); In re Southern Technical
College, Inc., 172 B.R. 253 (Bankr.E.D.Ark.1994) (ap-
plying Rule 9006(a) to two-year limitations period in 11
U.S.C. § 546; finding that date on which bankruptcy

statute similar to Bankruptcy Rule 9006(a), when a statute of
limitations was not jurisdictional because Fed.R.Civ.P. 82 preverts
the use of the Rules of Civil Procedure to extend the jurisdiction
of United States district courts. Moore v. United States, 173 F.3d
1131, 1134 (8th Cir.1999) (“before determining whether we
should apply Rule 6(a) to the one-year time limit in § 2255, we
must first determine whether that time limit is jurisdictional”).

App. 37

petition was filed was excluded from two-year period in
deciding whether avoidance proceeding was timely); Jn
re Sutera, 157 B.R. 519, 523 (Bankr.D.Conn.1993) (Rule
9006(a) is “applicable in full, and without exception, to
all provisions of the Bankruptcy Code, and ... Rule
9006(a) shall apply to Code § 546(a)”); In re Amdura
Corp., 142 B.R. 433, 435 (Bankr.D.Coile.1992) (“an
abundance of case law in other circuits” supports idea
that Rule 9006(a) applies to calculation of two-year
statute of limitations in 11 U.S.C. § 546(a); “Congress
did not say that [Bankruptcy Rule 9006(a)] was to
apply to statutes only if they were procedural or only
if they did not confer jurisdiction. The rule is not so
limited. The intent wes that the rule apply to all
applicable statutes. To find otherwise would require a
determination that Congress did not mean what it
said.”). See also H.R. Rep. 103-835, P.L. 103-394,
Bankruptcy Reform Act of 1994, res ai 1994 WL
562232, at *50-51, or 1994 U.S.C.C.A 3340, at
3358 (Oct. 4, 1994) (“Section- oe pene
Discussion of Section 217, “Limitation of Avoiding
Powers”) (“This section clarifies section 546(a)(1) of
the Bankruptcy Code.... The time limits are not
intended to be jurisdictional and can be extended by
stipulation between the necessary parties to the
action or proceeding.”); 2 Bankruptcy Desk Guide
§ 17:55 (Aug.2007), available at Westlaw Database
BDR. BDG § 17:55 (time limits in 11 U.S.C. § 546(a)
were not intended to be jurisdictional, cae a true
statute of limitations; “The Bankruptcy Rules provide
that in computing any period of time prescribed or
allowed by any applicable statute, the day of the act,

App. 38

event, or default from: which the designated period of
time begins to run is not included. ... This Rule has

been applied to the computation of the limitations
period in 11 U.S.C.A. § 546(a).”).

Because 11 U.S.C. § 546(a) is not jurisdictional,
the time-comrtitation rules of Bankruptcy Rule
9006(a) apply,’ and calculation of the limitations
period in 11 U.S.C. § 546(a) would begin on the day
following the date the petition was filed — September
14, 2004 ~ and end on the anniversary date of the
petition filing — September 13, 2006 — making the
Trustee’s September 13, 2006, filing of the adversary
proceeding against Maureen Raynor timely. Accord-
ingly, I shall deny Maureen Raynor’s appeal from the
bankruptcy court’s orders denying her motion to
dismiss the Trustee’s adversary complaint and her
motion for rehearing.

IT IS ORDERED:

1. The appeal filed by defendant/appellant
Maureen Raynor is denied;

2. The bankruptcy court’s orders denying
Maureen Raynor’s motion to dismiss (Filing 15, U.S.
Bankruptcy Court, District of Nebraska, Case No.

* One could convincingly argue that Rule 9006 applies —
regardless of how 11 U.S.C. § 546(a) is characterized — because
by its own terms, Rule 9006 applies to “any applicable statute.”

App. 39

A06-8105, Memorandum on Motion to Dismiss Adver-
sary Proceeding) and motion to reconsider (/d., Docket
Sheet, Filing 20) are affirmed;

3S. Judgment shall be entered by separate
oD Y
docu ment.

App. 40

APPENDIX D

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEBRASKA

IN THE MATTER OF: ) CASE NO. BKO4-83112
JOHN PATRICK RAYNOR, A06-8105
Debtor(s). iets Be

RICHARD D. MYERS,
Trustee of the John P.
Raynor Chapter 7 Bankruptcy, )

)

)

)

)

)

)
Plaintiff, )
v. )
MAUREEN RAYNOR, :
Defendant. )

MEMORANDUM

Hearing was held in Omaha, Nekraska, on De-
cember 21, 2006, regarding Filing No. 8, Motion to
Dismiss Adversary Proceeding, filed by Maureen
Raynor, and Filing No. 11, Resistance, filed by Rich-
ard D. Myers. Alan Pedersen appeared for Richard
D. Myers and Elizabeth Callaghan appeared for
Maureen Raynor. This memorandum contains find-
ings of fact and conclusions of law required by Fed-
eral Rule of Bankruptcy Procedure 7052 and Federal
Rule of Civil Procedure 52. This is a core proceeding

as defined by 28 U.S.C. § 157(b)(2)(F), (H) and (O).

On September 13, 2004, the Debtor filed a volun-
tary petition under Chapter 11 of the Bankruptcy

App. 41

Code. An order for relief was entered September 13,
2004. The Trustee was appointed on June 3. 2005, on
the date the case was converted to Chapter 7. The
Trustee filed this adversary proceeding against the
defendant, the purpose of which was to avoid alleged
preferential transfers in violation of §547 of the
Bankruptcy Code, to avoid certain other transfers
pursuant to § 544 of the Code and the Nebraska
Uniform Fraudulent Transfer Act, and to avoid un-
authorized post-petition transfers. The complaint was
filed on September 13, 2006.

The defendant has filed a motion to dismiss the
adversary proceeding as untimely, on the theory that
the applicable two-year statute of limitation accrued
on September 13, 2004, the day the alleged causes of
action accrued, that is, the petition date. The defen-
dant asserts that the statute of limitation, 11 U.S.C.
§ 546(a) ran on September 12, 2006. Since the adver-
sary complaint was filed one day after that date, on
September 13, 2006, the defendant suggests that this
court lacks jurisdiction and a dismissal with prejudice
is warranted.

The statutory provision relied upon by the
defendant is 11 U.S.C. § 546(a). It states:

(a) An action or proceeding under sec-
tion 544, 545, 547, 548, or 553 of this title
may not be commenced after the earlier of —

(1) the later of —

(A) 2 years after the entry of
the order for relief; or

App. 42

(B) 1 year after the appoint-
ment or election of the first
trustee under section 702, 1104,
1163, 1202, or 1302 of this title
if such appointment or such
election occurs before the ex-
piration of the period specified
in subparagraph (A); or

(2) the time the case is closed or
dismissed.

The Trustee resists the motion to dismiss because
it is his position that Federal Rule of Bankruptcy
Procedure 9006(a) makes the complaint timely. Rule
9006(a), in relevant part, states:

In computing any period of time pre-
scribed or allowed by these rules or by the
Federal Rules of Civil Procedure made appli-
cable by these rules, by the local rules, by or-
der of court, or by any applicable statute, the
day of the act, event, or default from which
the designated period of time begins to run
shall not be included. The last day of the pe-
riod so computed shall be included, unless it
is a Saturday, a Sunday, or a legal holiday, or,
when the act to be done is the filing of a pa-
per in court, a day on which weather or other
conditions have made the clerk’s office in-
accessible, in which event the period runs
until the end of the next day which is not one
of the aforementioned days.

Rule 9006(a) is basically the same as Federal
Rule of Civil Procedure 6(a). If Rule 9006(a) is appli-
cable to 11 U.S.C. § 546(a), the first date used for

App. 43

calculating the statutory time limit would be Sep-
tember 14, 2004, the day following the petition date.
The last date included in the two year limitations
period would be September 13, 2006, the anniversary
date of the petition filing. Bankruptcy courts, gener-
ally, have determined that Rule 9006(a) governs the
computation of time on a period of time to take action
as prescribed by an applicable statute, such as 11
U.S.C. § 546. See Grella v. Zimmerman (in re Art &
Co.), 179 B.R. 757, 762 (Bankr. D. Mass. 1995) (stat-
ing “the vast majority of courts has |sic] ruled that, in
light of the language of Fed. R. Bankr. P. 9006(a), the
date of the trustee’s appointment should not be
counted in computing the statute of limitations under
section 546(a)”); Callahan v. Moore (In re Gen. Crea-
tions, Inc.), 343 B.R. 548 (Bankr. W.D. Va. 2006); S.
Tech. Coll. v. Ark. Television Co. (In re S. Tech. Coll.,
Inc.), 172 B.R. 253 (Bankr. E.D. Ark. 1994); Boatman
v. Furnia (In re Sutera), 157 B.R. 519 (Bankr. D.
Conn. 1993); Amdura Corp. v. Faegre & Benson (In re
Amdura Corp.), 142 B.R. 433 (Bankr. D. Col. 1992);
Zimmerman v. Nat'l Elec. Benefit Fund (In re Kaelin
Assoc. Elec. Constr, Inc.), 70 B.R. 412 (Bankr. E.D.
Pa. 1987); Judson v. Intl Terminal Operating Co.
(In re Oro Import Co.), 69 B.R. 6 (S.D. Fla. 1986);
Salomon v. Pan Am. World Airways, Inc. (In re Black
& Geddes, Inc.), 35 B.R. 827 (Bankr. S.D.N.Y. 1983)

However, the Court of Appeals for the Sixth
Circuit, when faced with the specific question pre-
sented in this case, held that the two year time period

Aj»p. 44

begins to run as of the date of the Trustee’s appoint-
ment. It found that § 546(a) was “jurisdictional” and
that Rule 9006(a) could not be used to extend the ju-
risdictional grant provided by the statute. The Circuit
Court in Martin v. First Nat'l Bank of Louisville (In
re Butcher), 829 F.2d 596 (6th Cir. 1987), followed its
own earlier decision in Rust v. Quality Car Corral,
Inc., 614 F.2d 1118 (6th Cir. 1980), which dealt with
the application of Civil Rule 6(a). However, the re-
fusal of the Court to apply Rule 9006(a) and Civil
Rule 6(a) in Butcher and Rust was specifically over-
ruled by the Sixth Circuit sitting en banc in Bartlik v.
U.S. Department of Labor, 62 F.3d 163, 166 (6th Cir.
1995). In Bartlik, the Sixth Circuit determined that,
contrary to its prior decisions, it now conceptualizes
Civil Rule 6(a) as merely providing a method of
computing time, and not as expanding or extending a
statute of limitations.

The Sixth Circuit’s reexamination of the applica-
bility of Civil Rule 6fa) is significant because the
Eighth Circuit Court of Appeals relied upon Rust v.
Quality Car Corral, Inc., when it determined in
Mattson v. U.S. West Communications, Inc., 967 F.2d
259 (8th Cir. 1992), that under the Fair Debt Collec-
tion Practices Act, for a court to have jurisdiction, the
complaint must be filed on the day prior to the anni-
versary of the date of mailing, which, by analogy to
this adversary proceeding, would be the day before
the anniversary of the bankruptcy petition filing date.
Mattson, itself, was somewhat inconsistent with a
prior Eighth Circuit decision, McDuffee v. United

App. 45

States, 769 I. 2d 492, 494 (8th Cir. 1985). which cited
with approval other courts that had applied Civil
Rule 6(a) to federal statutes of limitations. More
recently, in Moore v. United States, 173 F.3d 1131 (8th
Cir. 1999), the Eighth Circuit Court of Appeals, when
interpreting the Anti-terrorism and Effective Death
Penalty Act’s (AEDP) one year time limit for filing
motions to set aside or vacate sentences, determined
that the AEDP is a statute of limitations, not a juni:

dictional bar, and therefore a= motion for post

conviction relief had to be filed no later than the
anniversary date of the effective date of the statute,
not one day prior to the anniversary date. The court

stated

We declined to apply Rule 6(a) in Mallson
because the statute of limitations in the
I DCPA was jurisdictional, and Fed. R. Civ. P
$2 prevents the use of the Rules of Civil Pro
cedure to extend the jurisdiction of district
courts. Thus, before determining whether we
hould apply Rule 6(a) to the one-year time
mit in § 2255, we must first determine

hether that time limit ts jurisdictional

173 F.3d at 1134. The court determined that the time
limit under that statute was not jurisdictional and
did apply Rule 6(a) to begin the computation of time
one day after the effective date of the enactment

the statute

Analogously, it would appear that if the Lighth
Circuit Court of Appeals had before it the question of

whether Rule G nila

« ov
SALsSOANJL VAAL 11s,

U.S. Trustee

i=
rt

i
achit

* Movant (*) is responsible for giving notice to other parties

if required by rule or statute.

App. 48

APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 07-3919
In re: Maureen Raynor,
Petitioner

Appeal from the District of Nebraska —- Omaha
8:07-cv-00151-RGK)

JUDGMENT

AieAnw

ered by the court and is denied
January 04, 2008

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.

s/ Michael E. Gans

App. 49

APPENDIX F

Maureen Raynor, Petitioner
Vv.

United States District Court

for the District of Nebraska.

No. 07-1197.
SUPREME COURT OF THE UNITED STATES

553 U.S. 1065; 128 S. Ct. 2528; 171 L. Ed. 2d 787;
2008 U.S. LEXIS 4441; 76 U.S.L.W. 3628

May 27, 2008, Decided

JUDGES: Roberts, Stevens, Scalia, Kennedy, Souter,
Thomas, Ginsburg, Breyer, Alito.

OPINION
Petition for writ of certiorari to the United States
Court of Appeals for the Eighth Circuit denied.

App. 50

APPENDIX G
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 09-2464
In re: John Patrick Raynor
Debtor

Richard D. Myers, Trustee of the
John P. Raynor Chapter 7 Bankruptc:

Appellee

Maureen Raynor and John Patrick Raynor
Appellants

Appeal from the Bankruptcy Appellate Panel
for the Eight Circuit
(09-6012)

ORDER

The petition for rehearing en banc is denied. The
petition for rehearing by the panel is also denied.

October 20, 2010

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.

s/ Michael E. Gans

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2745%3A1. Public record. Not legal advice.