United States District Court, D. South Carolina, Columbia Division
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Appellants' appeal of a
decision of the United States Bankruptcy Court for the
District of South Carolina (“Bankruptcy Court”).
ECF No. 1. In accordance with 28 U.S.C. § 636(b) and
Local Civil Rule 73.02(B)(2), (D.S.C.), this matter was
referred to United States Magistrate Judge Paige J. Gossett,
for pre-trial proceedings and a Report and Recommendation
(“Report”). On March 5, 2018, the Magistrate
Judge issued a Report recommending that the appeal should be
summarily dismissed because the appeal was untimely. ECF No.
5. The Magistrate Judge advised Appellants of the procedures
and requirements for filing objections to the Report and the
serious consequences if Appellants failed to do so. ECF No.
5. Appellants filed objections to the Report. ECF 9.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See U.S.C. § 636(b).
The Court will review the Report only for clear error in the
absence of an objection. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (stating that “in the absence of timely filed
objection, a district court need not conduct a de
novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.” (citation omitted)).
Report recommends that the appeal be summarily dismissed
because the appeal is untimely. ECF No. 5. Here, the
Appellants appeal the Bankruptcy Court's Order Denying
Avoidance of Liens, which was issued on December 15, 2017.
ECF No. 1. According to the Federal Rules of Bankruptcy
Procedure, “a notice of appeal must be filed with the
bankruptcy clerk within 14 days after entry of the judgement,
order, or decree being appealed.” Fed.R.Bankr.P.
8002(a)(1). Accordingly, Appellants' notice of appeal was
due December 29, 2017. Because the Court was closed on December
29, 2017 through January 1, 2018, Appellants' time to
file their appeal was extended to January 2, 2018.
See Fed. R. Bankr. P. 9006(a); Order Announcing Holiday
Closings of the Court, Bankr. D.S.C.
http://www.scb.uscourts.gov/bulletin/1517413588 (filed Nov.
Appellants filed their notice of appeal on January 3, 2018.
(In re Baker, 17-3405, ECF No. 115.) Thus, this
appeal is untimely and should be summarily dismissed for lack
of jurisdiction. See Wilson v. Moss, C/A No.
5:15-2230-MBS, 2015 WL 4257121, at *1 (D.S.C. July 13, 2015)
(“When evaluating a bankruptcy appeal, the court should
determine, as a threshold matter, whether the notice of
appeal has been timely filed.”); see also Ekweani
v. Wells Fargo Home Mortg., Inc., Civil No. CCB-13-2661,
2013 WL 5937977, at *1 (D. Md. Nov. 5, 2013) (“Failure
to file a timely notice of appeal from a bankruptcy court
order deprives the district court of jurisdiction to consider
the appeal.”) (citing Smith v. Dairyman, Inc.,
790 F.2d 1107, 1109 (4th Cir. 1986)); Chien v.
Commonwealth Biotechnologies, Inc., 484 B.R. 659, 663
(E.D. Va. 2012) (“It is well-settled that, if a
prospective appellant fails to timely file his notice of
appeal, the District Court is stripped of its jurisdiction to
hear the appeal.”) (citing Dairyman, 790 F.2d
at 1111); AgSouth Farm Credit, ACA v. Bishop, 333
B.R. 746, 748-50 (D.S.C. 2005) (finding noncompliance with
the former 10-day filing deadline deprived the district court
of appellate jurisdiction over a bankruptcy appeal that
required the court grant the respondent's motion to
Appellants argue in their objections that they made a timely
appeal by filing the appeal on January 3, 2018. ECF No. 10.
However, Appellants did not in fact file the appeal within 14
days after entry of the judgement, order, or decree being
appealed, and the United States Bankruptcy Court for the
District of South Carolina and the United States District
Court for the District of South Carolina were both open on
January 2, 2018. See Standing Order, Holiday
Nov. 1, 2017). Therefore, the Appellants' notice of
appeal was untimely. Accordingly, the Court adopts the Report
and Recommendation of the Magistrate Judge and overrules
Appellants' objections. This action is therefore
dismissed with prejudice.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate
 “If a notice of appeal is
mistakenly filed in a district court, BAP, or court of
appeals, the clerk of that court must state on the notice the
date on which it was received and transmit it to the
Bankruptcy clerk. The notice of appeal is then considered
filed in the bankruptcy ...