United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
F. McDonald, United States Magistrate Judge.
Williams Wazney (“Appellant”), proceeding pro
se, filed this appeal from an order issued by the United
States Bankruptcy Court for the District of South Carolina
(“Bankruptcy Court”) dismissing his miscellaneous
proceeding. Pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.),
the assigned United States Magistrate Judge is authorized to
review the appeal and submit findings and recommendations to
the district judge. For the reasons that follow, the court
recommends that the district judge dismiss this appeal.
Factual and Procedural Background
October 2, 2017, Appellant filed a Voluntary Petition for
Non-Individuals Filing for Bankruptcy
(“Petition”), naming the debtor as “2040
Hideaway Drive” (the “Debtor”) and the
Debtor's principal place of business as 990 Wisacky
Highway, Bishopville, SC 29010-the address of Lee
Correctional Institution, operated by the South Carolina
Department of Corrections-where Appellant is incarcerated.
See In re 2040 Hideaway Drive, Bankr. Case No.
3:17-mp-90009-dd, doc. 2 at 2. Appellant stated in the
Petition that the Debtor was a corporation (id.).
Appellant signed the Petition, under penalty of perjury, as
“attorney for [D]ebtor”. See In re 2040
Hideaway Drive, Bankr. Case No. 3:17-mp-90009-dd, doc. 2
October 6, 2017, the Bankruptcy Court entered an order
(“Order”) dismissing the Petition. See In re
2040 Hideaway Drive, Bankr. Case No. 3:17-mp-90009-dd,
doc. 3. The Bankruptcy Court held that although Petition
identified the Debtor as a corporation, there was no such
corporation registered with the South Carolina Secretary of
State. See id., doc. 3 at 2 and Exhibit A.
In addition, although the Appellant had signed the Petition
as attorney for the Debtor, records of the South Carolina Bar
Association showed that Appellant was not a licensed attorney
in South Carolina and was not admitted to practice in the
District of South Carolina. See id., doc. 3 at 2
and Exhibits B & C. The Bankruptcy Court held
that because Appellant was not a licensed attorney, he was
not permitted to file a voluntary petition on behalf of a
corporation as its attorney. See id., doc. 3. The
Bankruptcy Court dismissed the Petition, concluding:
“2040 Hideaway Drive is not an eligible debtor, no
relief is available under the petition, and the petition did
not commence a bankruptcy case.” (D.) The Order was
mailed from the Bankruptcy Noticing Center on October 7,
2017, to the Debtor at “2040 Hideaway Drive, 990
Wisacky Highwy [sic], Bishopville, SC 29010-1775.”
See In re 2040 Hideaway Drive, Bankr. Case No.
3:17-mp-90009-dd, doc. 4 at 6. A Record of Returned Mail
filed in the Bankruptcy Court's docket indicates that the
Order was returned to the Bankruptcy Court on October 31,
2017. See Id. at doc. 8.
November 22, 2017, Appellant appealed the Order by mailing a
Notice of Appeal to the Bankruptcy Court. See Bankr.
Case No. 3:17-mp-90009-dd, doc. 10 at 2. The Notice of Appeal
was filed on November 27, 2017. See Bankr. Case No.
3:17-mp-90009-dd, doc. 10 at 1. Appellant specifically stated
that he received the Order on November 9, 2017. See
Bankr. Case No. 3:17-mp-90009-dd, doc. 10 at 2. On November
29, 2017, the Bankruptcy Clerk transmitted the Notice of
Appeal to the Clerk of this Court, which docketed the appeal.
See Bankr. Case No. 3:17-mp-90009-dd, doc. 13.
Standard of Review
Appellant is a pro se litigant, and thus his
pleadings are accorded liberal construction. See Erickson
v. Pardus, 551 U.S. 89, 90-95 (2007) (per curiam). When
a federal court is evaluating a pro se complaint or
petition, the allegations are assumed to be true.
Merriweather v. Reynolds, 586 F.Supp.2d 548, 554
(D.S.C. 2008). Even under this less stringent standard, the
complaint is subject to summary dismissal. The requirement of
liberal construction does not mean that the court can ignore
a clear failure in the pleading to allege facts that set
forth a claim currently cognizable in a federal district
court. Weller v. Dep't of Soc. Servs., 901 F.2d
387, 390-91 (4th Cir. 1990).
courts are courts of limited jurisdiction, ‘constrained
to exercise only the authority conferred by Article III of
the Constitution and affirmatively granted by federal
statute.'” Wilson v. Moss, C.A. No.
5:15-2230-MBS, 2015 WL 4257121, at *2 (D.S.C. July 13, 2015)
(quoting In re Bulldog Trucking, Inc., 147 F.3d 347,
352 (4th Cir. 1998)). “Accordingly, a federal court is
required, sua sponte, to determine whether a valid
basis for jurisdiction exists, ‘and to dismiss the
action if no such ground appears.'” Id.
(quoting In re Bulldog Trucking, Inc., 147 F.3d at 352).
considering an appeal from the Bankruptcy Court, a federal
court first must determine whether the notice of appeal has
been timely filed. Wilson, 2015 WL 4257121, at *2
(citing Reig v. Wells Fargo Bank, N.A., No.
PWG-12-3518, 2013 WL 3280035, at *1 (D. Md. June 26, 2013)).
If the notice of appeal has not been timely filed, the
district court is without jurisdiction. Smith v.
Dairymen, Inc., 790 F.2d 1107, 1109 (4th Cir. 1986).
8003(a)(1) of the Federal Rules of Bankruptcy Procedure
states that “[a]n appeal from a judgment, order, or
decree of a bankruptcy court to a district court . . . may be
taken only by filing a notice of appeal with the bankruptcy
clerk within the time allowed by Rule 8002.”
Fed.R.Bankr.P. 8003(a)(1). Rule 8002 requires that “a
notice of appeal must be filed with the bankruptcy clerk
within 14 days of the entry of the judgment, order or decree
being appealed.” Fed.R.Bankr.P. 8002(a)(1); see
also 28 U.S.C. § 158(a)(1) (requiring appeal to
“be taken . . . in the time provided by Rule 8002 of
the Bankruptcy ...