IN RE BERGTHOLDT (Bankr.E.D.Cal. 1-8-2007)

Case No. 02-1353 1-B-7, Adversary Proceeding No. 06-1185 DC No. SL-1.United States Bankruptcy Court, E.D. California, Fresno Division.
January 8, 2007

MEMORANDUM DECISION RE DEFENDANT’S MOTION FOR LEAVE TO FILE INTERLOCUTORY APPEAL
RICHARD LEE, Bankruptcy Judge

The court has reviewed Defendant Mitra Lyons’ (“Defendant”) Motion for Leave to File Appeal, filed on December 19, 2006 (the “Motion”). Plaintiff James Salven, the Chapter 7 Trustee, responded on December 28, 2006 with an Objection to Reference of Motion for Leave to Appeal to the Bankruptcy Appellate Panel and Opposition to Defendant’s Motion for Leave to Appeal (the “Trustee’s Opposition”). For the reasons set forth below, the Motion will be denied.

Findings of Fact

This adversary proceeding was filed on June 13, 2006. On October 27, 2006, after a hearing, the court entered an order on Defendant’s objection to jurisdiction and demand for a jury trial (the “Order”). The Order was interlocutory, i.e., it did not finally adjudicate the rights of the parties. Fifty-three (53) days later, the Defendant filed her Motion. The Defendant’s pleadings in support of the Motion included a Motion for Leave to File Appeal, a Notice of Motion for Leave to File Appeal, a Declaration of Mitra

Page 2

Lyons in Support of Motion for Leave to File Appeal, a Declaration of Scott Lyons in Support of Motion for Leave to File Appeal, a Memorandum of Points and Authorities in Support of the Motion for Leave to File Appeal, and a Proof of Service. Notably, the Defendant did not file a notice of appeal relating to the Order itself, neither did the Defendant pay the filing fee associated with an appeal.

Conclusions of Law
Jurisdiction

The district court and the bankruptcy appellate panel both have jurisdiction to hear appeals of interlocutory orders of the bankruptcy court. 28 U.S.C. 158(a)(3). It follows that the appellate court should also hear a motion for leave to appeal an interlocutory order. However, the appellate court does not acquire jurisdiction over a matter unless and until a notice of appeal is filed. Further, when the appeal is from an interlocutory order, the appellate court does not acquire exclusive appellate jurisdiction over that issue unless and until it grants leave to appeal the disputed order. Fed.R.Bankr.P. 8003; see also In re Barker, 306 B.R. 339, 345 (Bankr. E.D. Cal. 2004). Unless a notice of appeal is properly filed, the bankruptcy court’s jurisdiction is not terminated simply because a party files a motion seeking leave to appeal an interlocutory order.

When a notice of appeal is filed, the clerk of the bankruptcy court dockets the appeal and transmits the notice of appeal, together with any related motion for leave to appeal, to the clerk of the district court or the clerk of the bankruptcy appellate panel pursuant to Fed.R.Bankr.P. 8003(b). However, a notice of appeal has not been filed in this case. No appeal has been docketed and nothing has been transmitted to the appellate court. As a consequence, this court is the only court with jurisdiction to rule on the Motion.[1]

Page 3

The Motion is Untimely

As the Trustee’s Opposition points out, the Defendant’s Motion is procedurally and fatally defective because she failed to file a timely notice of appeal.[2] Rule 8001(a) provides, “An appeal from a judgment, order, or decree of a bankruptcy judge to a district court or bankruptcy appellate panel . . . shall be taken by filing a notice of appeal with the clerk within the time allowed by Rule 8002.” Rule 8002 in turn provides, “The notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from.” (Emphasis added.) Here, the time for filing a notice of appeal of the Order expired on November 6, 2006, forty days (40) before the Defendant filed her Motion.[3]

Arguably, the Defendant’s Motion could be deemed to be a motion for an extension of time to file the notice of appeal. However, that motion would also fail because: (1) the Defendant failed to file a notice of appeal, and (2) the time limit for filing a motion to extend time has also expired. Rule 8002(c)(2) provides, “A request to extend the time for filing a notice of appeal must be made by written motion filed before the time for filing a notice of appeal has expired, except that such a motion filed not later than 20 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect.” (Emphasis added.) Here, the Defendant has not requested

Page 4

an extension of time by showing “excusable neglect” and the time for the Defendant to request an extension of time expired approximately twenty-three (23) days before the Defendant filed her Motion. The Defendant’s failure to file a notice of appeal (timely or otherwise), and her failure to timely seek an extension of time, precludes the granting of relief as requested. Without a pending appeal, there is nothing for this court, or any other court, to approve.

Based on the foregoing, the Motion will be DENIED.