Petition for Writ of Certiorari — Raynor v. United States (No. 07-1197)

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No.

nace OG OAE CLERK

3u The

Supreme Court of the Anited States

MAUREEN RAYNOR,

Petitioner,

Vv.

UNITED STATES DISTRICT COURT,

DISTRICT OF NEBRASKA,

Respondent.

SJ

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

e

PETITION FOR A WRIT OF CERTIORARI

Sd

Submitting Counsel for Petitioner:

JOHN P. RAYNOR

RAYNOR, RENSCH & PFEIFFER

10110 Nicholas Street, Suite 102

Omaha, NE 68114

Telephone: (402) 498-4400

Petitioner’s Counsel before the Eighth Circuit:

FRANCIE C. RIEDMANN, ESQ.

GROSS & WELCH, P.C., L.L.O.

1500 Omaha Tower, 2120 South 72nd Street

Omaha, NE 68124

Telephone: (402) 392-1500

QUESTION PRESENTED

Whether the Eighth Circuit erred by not issuing

a mandamus to end the usurpation of judicial power

by two American courts that felt at liberty to disre-

gard this Court’s Rule of Law, the Default Rule (re-

quiring the application of the Standard Rule in

regard to limitation statutes), adopted in a series of

decisions cumulating in Graham County Soil & Water

Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409,

125 S.Ct. 2444, 2550-51 (2005), and to decide for

themselves, without reference to this Court’s antece-

dent principles.

il

PARTIES TO THE PROCEEDING

Petition sought the issuance of a writ of manda-

mus to review the decision of the Honorable Richard

G. Kopf, United States District Court Judge for the

District of Nebraska, sitting as an appellant court for

the United States Bankruptcy Court for the District

of Nebraska. Richard D. Myers, Trustee (“Trustee”) in

_the Chapter 7 bankruptcy proceeding of John P.

Raynor (“Debtor”), the Appellee in the District Court

proceeding did enter an appearance in the request for

Writ of Mandamus since the request was denied

without opinion on January 4, 2008.

DISCLOSURE STATEMENT

Counsel for the Petitioner is the husband of the

Petitioner and the Debtor in the bankruptcy case.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ...................ccsecceceseeees i

PARTIES TO THE PROCEEDING ..................... ii

DISCLOSURE STATEMENT .....................ecceeceees il

TABLE OF AUTHORITIES ...................ccccseseeeeees Vv

ee MEE TE occ caarcvecscassccsecsescccacsesessoceeepanes 1

BI I ose sinciccscseveccoccscconccesvacevosnssececessen 1

ae Ae A TD cons vos cccciscccoseccovestecsadecave 1

STATEMENT OF THE CASE...................scccceseeees 2

PVG, Re pe 3

Ts: CURR TOW ooo isin os cncesshn edness 3

REASONS FOR GRANTING THE PETITION... 6

Be IS iano ov cseeews ec eirccactanass ipvsiccess 4

II. Maturation of this Principle of Law and a

I TRI ohio is di Sp vcs ind Rede ncdensvewecep rs 9

III. Miscellaneous Reasons...............0...c::secceees 11

CE II aoe oes sis cdacccscacivavevecscevsascnclecsvaahpacses 12

Appendix A

In re Maureen Raynor, No. 07-3919, C.A. 8,

I FI sn gsc dosiivan si Jekcagsesanvaccinoioransnines App. 1

Appendix B

In re Raynor, (No. 8:07CV151) 2007 WL

MEOOT ES. U3. PO FOF iiccaiiiniincicnciniccincicciine App. 2

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iv

TABLE OF CONTENTS - Continued

Page

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Appendix C

Richard D. Meyers v. Maureen Raynor, BK

Case: 04-83112, Adversary Case No. A06-

8105, U.S. Bankruptcy Court, Nebraska,

Decision and order of the Honorable Timothy

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TABLE OF AUTHORITIES

Page

CASES:

Bay Area Laundry and Dry Cleaning Pension

Trust Fund v. Ferbar Corp. of Cal., 522 U.S.

Bi Be ie PR IED Sov cvnpsccccrveccossoscessrsecessovecsees 9

Chase Securities Corporation v. Donaldson, 325

a. O08, GOB. CL. BAST CED4S) 3s... scccecessseseceees 11

Dodd v. U.S., 545 U.S. 353, 125 S. Ct. 2478

(2005), Justice Stevens’ dissenting opinion ........... 10

Graham County Soil & Water Conservation

Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 125

Be isc ay sopneeeesavncenccsbes passim

Mattson v. U.S. West Communications, Inc.,

YE fe 1S Se . -5 Rn 2

Moore v. U.S., 173 F.3d 1131 (8th Cir. 1999) ............... 2

Reiter v. Cooper, 507 U.S. 258, 113 S. Ct. 1213

a aaa Ly ieee des auivcsebeesccehecdocoresceeeses 9

TRW Inc. v. Andrews, 534 U.S. 19, 122 S. Ct.

441, 151 L.Ed.2d 339 (2001) — the Majority’s

a rn alc diasinoveneenivens 9

TRW Inc. v. Andrews, 534 U.S. 19, 122 S. Ct.

441, 151 L.Ed.2d 339 (2001) -— Justice

Scalia’s Concurring opinion in judgment............... 10

Union Nati Bank of Wichita Kan. v. Lamb, 337

U.S. 38, 69S. Ct. 911, 93 L.Ed. 1190 (1949)............ 2

Union Pacific R. Co. v. Beckham, 138 F.3d 325

RRS IESE RESIN 3, ADSI Creer Seite SP ale ene 11

vi

TABLE OF AUTHORITIES — Continued

Page

U.S. CONSTITUTION:

CORSE, MPEICIS VE. CLAUBC 2 ....0......0...ccccccsesccccccccsscocsceones 6

MN sini, cape casevacnouavedadanibsossiabessdousas 9

Const. Amend. XIV, The Equal Protection

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STATUTES & RULEs:

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BO roe sce sonnesoicesvoecvascoucsecns subsdonuaddouss 6

Fed. R. Bankr. Proc. 9006(a) ................. cece eeeceeeceecees 3, 7

RE! SE FO OD ccocc covnsieesccnesscccasocsesusctuseccoceecsi a §

OTHER AUTHORITY:

1 Bankruptcy Practice Handbook § 6:30 (2d

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OPINIONS BELOW

The United States Court of Appeals for the

Eighth Circuit entered the judgment on January 4,

2008 denying the Writ of Mandamus without opinion.

The decision of the United States District Court

sitting as an appellant court is reported as an unpub-

lished opinion in Westlaw as In re Raynor, (No.

8:07CV151) 2007 WL 4180713, D. Neb., 2007 and is

reprinted in Appendix “A” to the Petition. The Bank-

ruptcy Court’s decision is unpublished and is re-

printed in Appendix “B” to the Petition (“Pet. App.”).

¢

JURISDICTION

The Court of Appeals denied the writ for Man-

damus on January 4, 2008. This Court has jurisdic-

tion under 28 U.S.C. § 1254(1).

S

STATUTES INVOLVED

This case involves a Fede:al limitations statute

in a bankruptcy case: 11 U.S.C. § 546(a). The statute

provides: “An action or proceeding ... may not be

commenced ... later... [than] 2 years after the entry

of the order for relief.”

2

STATEMENT OF THE CASE

The Petitioner filed for the issuance of a writ for

mandamus by the Eighth Circuit seeking the narrow-

est possible relief, to wit:

1. To direct the District Court to discharge its

duty (legal charge) by addressing the extensive

Supreme Court precedent cited in Petitioner’s briefs

in support of the Default Rule which mandates the

application of the Standard Rule for limitations

periods as adopted in Graham County Soil & Water

Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409,

125 S. Ct. 2444, 2550-51 (2005).

2. If thereafter, the District Court departs from

the foregoing precedent, to support its departure by

special justification.

3. For the Eighth Circuit to address the confu-

sion created by the adoption of two Rules of Law

regarding limitation statutes which are mutually

exclusive; that is, the Rule of Law (Standard Rule/

Traditional Rule) adopted in Mattson v. U.S. West

Communications, Inc., 967 F.2d 259, 262 (8th Cir.

1992), and the Rule of Law (Modern Rule) adopted in

Moore v. U.S., 173 F.3d 1131 (8th Cir. 1999).

The Bankruptcy Court and District Court, in

their decisions on the limitations period, applied the

Modern Rule, also known as the “Lamb Doctrine.”

Union Nati Bank of Wichita Kan. v. Lamb, 337 U.S.

38, 69 S. Ct. 911, 93 L.Ed. 1190 (1949). The Modern

Rule relies, not upon the language of the limitation

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statute, but upon the rules of civil procedure. Fed. R.

Civ. Proc. 6(a) or Fed. R. Bankr. Proc. 9006(a) serves

as the legal foundation to create a gap period between

the accrual of the action and the commencement of

the limitation period thus making an anniversary

date filing timely.

A. Factual Background.

There were no factual disagreements between

the Parties. All the necessary facts are set forth in

Section B below. T‘1e District Court correctly stated in

page 2 of its memorandum and order, that:

The parties agree that the question in this

appeal is “whether the ‘triggering event’

commences the running of the two-year stat-

ute of limitations, or whether the statute of

limitations commences the day after the day

of the ‘triggering event.’” In re Raynor, (No.

. 8:07CV151) 2007 WL 4180713, D. Neb.,

2007.

This is an issue of law. As to that issue of law, the

Trustee, in his brief to the United States District

Court, acknowledged that this Court applied the

Traditional Rule in Graham County Soil.

B. Proceedings Below

The proceedings that precipitated the requested

relief are:

4

The “triggering event” of the applicable limi-

tations statute in four of the five counts was

Debtor’s bankruptcy filing (“Debtor’s Filing”)

on September 13, 2004.

The Trustee was appointed on June 3, 2005.

The Trustee filed his Adversary Complaint

against Petitioner, Maureen Raynor, on Sep-

tember 13, 2006, the second anniversary of

Debtor’s Filing.

The Federal limitation statute at issue, 11

U.S.C. § 546(a)(1)(A), is two (2) years for four

out of five counts alleged in the Trustee’s Ad-

versary Complaint.

In lieu of an Answer to the Trustee’s Adver-

sary Complaint, the Petitioner filed her

Original Motion to Dismiss the action as

time-barred on November 6, 2006. The Mo-

tion was based on the application cf the

Standard Rule/Traditional Rule as mandated

through adoption of the Default Rule in Gra-

ham County Soil & Water Conservation Dist.

v. U.S. ex rel. Wilson, 545 U.S. 409, 125 S. Ct.

2444, 2550-51 (2005).

On January 28, 2007, the Bankruptcy Court

denied Petitioner’s Original Motion to Dis-

miss and failed to consider and/or address

the legal principle of Stare Decisis in context

of the Supreme Court authority cited in Peti-

tioner’s briefs.

Petitioner filed a Motion for Reconsideration

with the Bankruptcy Court on February 5,

2007, asking that the Court address the De-

fault Rule and the Supreme Court precedent.

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5

The Bankruptcy Court denied Petitioner’s

Motion for Reconsideration without opinion

on March 27, 2007.

The Petitioner filed an Appeal to the District

Court on April 5, 2007, pursuant to 28 U.S.C.

§ 158(a\(3).

On Appeal to the District Court by order

dated April 26, 2007, the Petitioner was re-

quired to brief the jurisdictional issues ap-

plying the standards of 28 U.S.C. § 1292(b).

The Petitioner argued that the Bankruptcy

Court ignored Supreme Court precedent that

was dispositive of the issue.

After District Court’s July 5, 2007 Order ex-

ercising the Court’s discretion to hear the

Appeal, Petitioner' and Trustee/Appellee

briefed the issue.

On November 21, 2007, the District Court

denied Petitioner’s appeal and affirmed the

Bankruptcy Court order.

In its Memorandum of Law, the District

Court failed to consider and/or address the

legal principle of Stare Decisis in context of

the Supreme Court authority cited by Peti-

tioner. There is no evidence in the District

Court’s Memorandum Opinion that Supreme

Court precedent was raised by Petitioner as

authority for Petitioner’s position.

In the Eighth Circuit, appeals from District

Court decisions on bankruptcy court inter-

locutory orders is not permitted.

6

15. On December 17, 2007, the Petitioner filed

the Writ of Mandamus pursuant to 28 U.S.C.

§ 1651 with the Eighth Circuit Court of Ap-

peals because the District Court and Bank-

ruptcy Court failed to consider and address

the legal principle of Stare Decisis in context

of the Supreme Court authority cited by Pe-

titioner.

16. On January 4, 2008, the Eighth Circuit de-

nied the request for Mandamus without

opinion.

On the date set forth below, Petitioner sought relief in

the form of this writ.

ry

v

REASONS FOR GRANTING THE PETITION

The extra-ordinary circumstai.ces involved in

this case are that two American courts felt at liberty

to disregard this Court’s Default Rule (which requires

the application of the Standard Rule in regard to

limitation statutes) and to decide for themselves,

without reference to this Court’s antecedent princi-

ples. The Default Rule was adopted in a series of

Supreme Court decisions cumulating in Graham

County Soil & Water Conservation Dist. v. U.S. ex rel.

Wilson, 545 U.S. 409, 125 S. Ct. 2444, 2550-51 (2005).

Petitioner sought the mandamus for the limited

purpose of directing the District Court to address

Supreme Court precedent as required pursuant

to Constitution, Article VI, clause 2, and pursuant

to 28 U.S.C. § 453, their oath of office. Through

pretermission a lower court cannot: (i) ignore Su-

preme Court’s precedent and (ii) depart from Su-

preme Court’s precedent without special justification.

The mandamus was for the purpose of confining an

inferior court to a lawful exercise of its prescribed

jurisdiction. Petitioner has a clear and indisputable

right to have a rule of law established by the Su-

preme Court applied to the case.

I. The Default Rule

The Standard Rule/Traditional Rule provides

that a cause of action accrues and the statute of

limitation commences at the same time. The legal

birthing process that resulted in the opinion in Gra-

ham County Soil makes it clear and indisputable

that:

(i) The Default Rule requires the application of

the Standard Rule to “all” Federal limitation

statutes; and

(ii) Such application of the Default Rule is ‘man-

datory’ unless specific language of the stat-

ute expressly provides otherwise.

The Default Rule changed the paradigm: it is no

longer permissible to resort to outside authority on

the premise that the language of the limitation

statute is ambiguous.

Adherents to the Modern Rule go outside the

language of the limitation statute and rely on Fed. R.

Civ. Proc. 6(a), or in a bankruptcy case, Fed. R.

8

Bankr. Proc. $006(a) to create a one-day-gap period

between the day the cause of action accrued and the

day the limitation statute commences to run. Other

applications of the Modern Rule add additional time

when a limitation period ends on a weekend or holi-

day. This one-day-gap period makes anniversary date

filings timely. Procedural Rules, that do not apply

until a case is filed, are used under the Modern Rule

to revive an otherwise stale statute.

How does a court apply the Modern Rule in light

of the Default Rule? The court either (i) is uninformed

about Graham County Soil or (ii) pretermits the

Default Rule. In this case, there was extensive brief-

ing of the Default Rule and each of the cases men-

tioned in Graham County Soil. The District Court

and the Bankruptcy Court both issued opinions

without any evidence that the Supreme Court prece-

dent was even considered.

Petitioner acknowledges that had the District

Court misapplied the Standard Rule to the facts a

mandamus action.would be improper. However, in

this case both the Bankruptcy Court and District

Court departed from Supreme Court precedent. No

special justification for the departure was cited

because the courts did not acknowledge the Supreme

Court precedent. Whatever reason one ascribes to the

action of the Bankruptcy Court and the District

Court, it is not in accord with the premise of our legal

system that ‘justice is blind’ as set forth in the Equal

Protection Clause of the U.S. Constitution: Const.

9

Amend. XIV, as applied to the Federal Government

through Const. Amend. V.

This case is important because it is in congruence

with the purpose of mandamus: to confine lower

courts to their lawful jurisdiction and for higher

courts to exercise their supervisory authority to

insure lower courts apply law and not make law. This

case deals with the fundamental workings of our

judicial system — its integrity. A lower court should

not be allowed to bestow upon itself jurisdiction by

ignoring Supreme Court precedent.

II. Maturation of this Principle of Law

and a Judicial Schism

The maturation process of the Standard Rule at

the Supreme Court has been long and finally culmi-

nated in the Default Rule in 2005. This is the recent

case history:

Year

Decided Case Citation

1993 Reiter v. Cooper, 507 U.S. 258, 267, 113

S. Ct. 1213

1997 Bay Area Laundry and Dry Cleaning

Pension Trust Fund v. Ferbar Corp. of

Cal., 522 U.S. 192, 201, 118 S. Ct. 542.

2001 TRW Inc. v. Andrews, 534 U.S. 19, F. 6 at

34, 122 S. Ct. 441, 151 L.Ed.2d 339 — the

Majority’s opinion.

10

TRW Inc. v. Andrews, 534 U.S. 19, a‘ 35,

122 S. Ct. 441, Justice Scalia’s opinion

concurring in judgment.

Graham County Soil & Water Conserva-

tion Dist. u. U.S. ex rel. Wilson, 545 U.S.

409, 125S. Ct. 2444, 2550-51.

2005 Dodd v. U.S., 545 U.S. 353, 125 S. Ct.

2478, Justice Stevens’ opinion dissenting.

By the time this writ is submitted to this Court it

would have been over fifteen (15) years since the

Supreme Court, in recent history, first addressed the

Standard Rule in 1993. At this time, the Standard

Rule/Traditional Rule is the law in the Supreme

Court of the United States but the Modern Rule is the

law of virtually every Circuit. Why?

In none of the above cited Supreme Court cases

does this Court mention the Modern Rule in any of its

opinions. Further, this Court has never held that the

rule of law in Graham County Soil overrules any of

the lead cases that adopt the Modern Rule.

Our judicial system has an impermissible schism:

one rule prevails at the Supreme Court and another

rule prevails in most of the Circuits. The multi-tiered

judicial system cannot tolerate this schism. The

Equal Protection Clause requires that the Rule of

Law adopted by the Supreme Court be, and is, the

law of the land.

This case is important because it will reduce the

maturation period for the Default Rule and eliminate

the schism. Petitioner has a clear and indisputable

11

right to the application of a Supreme Court Rule of

Law.

Ill. Miscellaneous Reasons

In Chase Securities Corporation v. Donaldson,

325 U.S. 304, at 314; 65 S. Ct. 1137 (1945), this court

held:

Statutes of limitation find their justifica-

tion in necessity and convenience rather

than in logic. They represent expedients,

rather than principles. ... They represent a

public policy about the privilege to litigate.

(Citations omitted).

The Eighth Circuit has held that “strict adherence to

such limitations periods “is the best guarantee of

evenhanded administration of the law.” Union Pacific

R. Co. v. Beckham, 138 F.3d 325 (8th Cir. 1998).

Limitation statutes are public policy when the

right to litigate has ended. In this case, the right to

litigate ended and a court should not be able to set

aside public policy by flouting a Rule of the Supreme

Court.

“The purpose of the Bankruptcy Code is to pro-

vide the honest debtor with a ‘fresh start.” 1 Bank-

ruptcy Practice Handbook §6:30 (2d ed.). The

Petitioner has not only suffered through Debtor’s

bankr«ptcy but now must be subjected to the expense

of a trial and if a judgment be had, appeals to at least

12

the Eighth Circuit in order to potentially have the

Rule of law decided in Graham County Soil applied to

dispose of the litigation. This occurs not because the

Court misapplied a rule of law but because it chose

to, in a bankruptcy setting, ascribe itself jurisdiction

it does not have by ignoring dispositive Supreme

Court precedent placed before it.

Both the public policy reasons behind the Con-

gressional adoption of limitation statutes as well as

the fresh start purpose of the bankruptcy code aug-

ment the reasons why this Court should grant the

requested relief.

.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully Submitted,

JOHN P. RAYNOR

RAYNOR, RENSCH & PFEIFFER

10110 Nicholas Street, Suite 102

Omaha, NE 68114

Telephone: (402) 498-4400

App. l

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 07-3919,

In re: Maureen Raynor,

Petitioner

Appeal from District of Nebraska - Omaha

(8:07-cv-00151-RGK)

JUDGMENT

Petition for writ of mandamus has been consid-

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. 2

APPENDIX B

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,

v.

Maureen Raynor, Appellant/Defendant.

No. 8:07CV151.

No. BK04-83112.

Adv. No. A06-8105.

Nov. 21, 2007.

Alan E. Pedersen, McGill, Gotsdiner Law Firm,

Omaha, NE, for Appellee/Plaintiff.

Elizabeth M. Callaghan, William L. Biggs, Jr., Gross,

Welch Law Firm, Omaha, NE, for Appellant/Defendant.

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

This is an interlocutory appeal filed by the appel-

lant/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 is now ripe for

App. 3

disposition. (Filing 13, Order Granting Leave to Ap-

peal & Setting Briefing Schedule.)

BACKGROUND

On September 13, 2004, John P. 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

11 of the United States Bankruptcy Code. (Filing 3-2,

Docket Sheet from U.S. Bankruptcy Court, District of

Nebraska, Case No. BK04-83112.)An order of relief

was entered on September 13, 2004.'On June 2, 2005,

the bankruptcy court issued an order converting the

case to a Chapter 7 proceeding, and the Trustee was

appointed a day later. (Jd.) 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

' “In a 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. 4

alleged post-petition transfers. (Filing 155, U.S.

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 provides 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. 5

$ 546(a)(1) is not jurisdictional, Rule 9006(a)’

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 be-

gin the count on the day following the peti-

tion date and end the count on the

anniversary date of the petition filing. Fol-

lowing 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. A06-8105, 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.” (/d., Docket

Sheet, Filing 20.) This appeal followed.

* Rule 9006, in relevant part, provides:

In computing any period 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.

Id. (italics added).

App. 6

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.)

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 Maurcen 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. 7

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)

governs 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 prevents

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. 8

petition was filed was excluded from two-year period in

deciding whether avoidance proceeding was timely); In

re Sutera, 157 B.R. 519, 523 (Dankr.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.Colo.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 was 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, available at 1994 WL

562232, at *50-51, or 1994 U.S.C.C.A.N. 3340, at

3358 (Oct. 4, 1994) (“Section-by-Section Analysis’;

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, but 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. 9

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-computation 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 Mau-

reen 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. 10

A06-8105, Memorandum on Motion to Dismiss Adver-

sary Proceeding) and motion to reconsider (Jd.,

Docket Sheet, Filing 20) are affirmed;

3. Judgment shall be entered by separate

document.

App. 11

APPENDIX C

IN THE UNITED STATES BANKRUPTCY COURT

: FOR THE DISTRICT OF NEBRASKA

j IN THE MATTER OF: ) CASE NO. BK04-83112

JOHN PATRICK RAYNOR, ) A06-8105

Debtor(s). ) CH. 7

RICHARD D. MYERS,

Trustee of the John P.

)

)

)

Raynor Chapier 7 Bankruptcy,

Plaintiff, )

v. )

MAUREEN RAYNOR,

Defendant. )

ORDER

Hearing was held in Omaha, Nebraska 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 Mau-

reen Raynor.

In accordance with the Memorandum filed con-

temporaneously herewith,

IT IS ORDERED: The motion to dismiss the

adversary proceeding (Fil. #8) is denied.

DATED: January 26, 2007

App. 12

BY THE COURT:

/s/ Timothy J. Mahoney

Chief Judge

Notice given by the Court to:

Alan Pedersen

*Elizabeth Callaghan

U.S. Trustee

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

if required by rule or statute.

App. 13

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF NEBRASKA

IN THE MATTER OF: ) CASE NO. BK04-83112

JOHN PATRICK RAYNOR, ) A06-8105

Debtor(s). ) CH. 7

RICHARD D. MYERS,

Trustee of the John P.

Raynor Chapter 7 Bankruptcy,

)

)

)

)

ee )

Plaintiff, )

v. )

)

)

)

MAUREEN RAYNOR,

Defendant.

MEMORANDUM

Hearing was held in Omaha, Nebraska, on

December 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 Mau-

reen Raynor. This memorandum contains findings of

fact and conclusions of law required by Federal 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

Code. An order for relief was entered September 13,

App. 14

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 unau-

thorized 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 defen-

dant is 11 U.S.C. § 546(a). It states:

(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; or

Pe :

soc Ef bg PE yee x a in

EE OEP ee. AO ee Eee ee ONS NEES P:

App. 15

(B) 1 year after the appointment or

election of the first trustee under

section 702, 1104, 1163, 1202, or

1302 of this title if such appoint-

ment or such election occurs before

the expiration of the period specified

in subparagraph (A); or

(2) the time the case is closed or dis-

missed.

The Trustee resists the motion to dismiss because

it is his position that Federal Rule of Bankruptcy

Procedure 9006(a) makes the compiaint 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 inac-

cessible, 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

RO TLE Bae IRE TE INET ER a POF SLT TRS ee Po PRE Fae PETE Sa Wie Por PRS Sar ee tye te” Sine dae EET NRO SREN Ze nce aN

App. 16

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); Salo-

mon 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

App. 17

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

jurisdictional grant provided by the statute. The

Circuit Court in Martin v. First Natl Bank of Louis-

ville (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 refusal of the Court to apply Rule 9006(a) and

Civil Rule 6(a) in Butcher and Rust was specifically

overruled 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 deter-

mined 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 6(a) 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. 18

States, 769 F.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 juris-

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 Mattson

because the statute of limitations in the

FDCPA was jurisdictional, and Fed. R. Civ. P.

82 prevents the use of the Rules of Civil Pro-

cedure to extend the jurisdiction of district

courts. Thus, 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.

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 of

the statute.

Analogously, it would appear that if the Bighth

Circuit Court of 4.;peals had before it the question of

whether Rule 9006(a) should be applied to 11 U.S.C.

Ce LANE ee er E eT PD ee WER me Lee Me tee ee eRe eT, DO he eR et ge ye Ne ee ee We ae eee Ne eee

App. 19

§ 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 juris-

dictional, 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.

Congress seems to have been more helpful with

regard to whether § 546(a) is jurisdictional than it

was with regard to other statutory provisions which

have been interpreted by the courts. Section 546(a)

was amended in 1994 by Public Law 103-394, the

Bankruptcy Reform Act of 1994. In the section-by-

section analysis in the legislative history, Section 216,

the applicable amendment to the limitation of avoid-

ing powers, the House Report discussing the amend-

ment states:

This section clarifies section 546(a)(1) of

the Bankruptcy Code which imposes a 2-year

statute of limitations within which an ap-

pointed trustee must bring an avoidance ac-

tion. The purpose of a statute of limitations

is to define the period of time that a party is

at risk of suit. This section defines the appli-

cable statute of limitations as 2 years from

the entry of an order of relief or 1 year after

the appointment of the first trustee if such

appointment occurs before the expiration of

the original 2-year period. The section is

not intended to affect the validity of any

tolling agreement or to have any bear-

ing on the equitable tolling doctrine

where there has been fraud determined

pied vi PATE eT, it ks +S EUR OVER eg wn Me | Sie ee RE AA COR OE oem weds Re Ae Ae bof Phd Neakrss eA I yi he an Rea al SA

App. 20

to have occurred. The time limits are

not intended to be jurisdictional and

can be extended by stipulation between

the necessary parties to the action or

proceeding. (Emphasis added.)

Based upon the statutory interpretation proce-

dure identified as appropriate by the Eighth Circuit

Court of Appeals, and based upon the expressed

Congressional intent that 11 U.S.C. § 546(a)(1) is not

jurisdictional, Rule 9006(a) 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 petition date and end the

count on the anniversary date of the petition filing.

Following that counting procedure, the Trustee’s

filing of the complaint on September 13, 2006, is

timely. Therefore, the motion to disdismiss is denied.

A separate order will be entered.

DATED: January 26, 2007 BY THE COURT:

/s/ Timothy J. Mahoney

Chief Judge

Notice given by the Court to:

Alan Pedersen

*Elizabeth Callaghan

U.S. Trustee

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

if required by rule or statute.