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In Re Thinkfilm

February 21, 2013

IN RE THINKFILM, LLC


The opinion of the court was delivered by: Honorable Philip S. Gutierrez, United States District Judge

O

CIVIL MINUTES - GENERAL

JS-6(lc)

Present: The Honorable Philip S. Gutierrez, United States District Judge

Wendy K. Hernandez Not Present n/a Deputy Clerk Court Reporter Tape No. Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s): Not Present Not Present Proceedings: (In Chambers) Order DENYING Appellant's Leave to Appeal

Bankruptcy Court Order

Before the Court is a motion by David Bergstein ("Appellant") seeking leave to appeal a Bankruptcy Court order. Dkt. # 8.*fn1 The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); L.R. 7-15. Having considered the papers submitted in support of and in opposition to the motion, the Court DENIES the motion.

Background

This case arises from a number of involuntary Chapter 11 bankruptcy cases filed by creditors Aramid Entertainment Fund, Ltd., Screen Capital International Corp., and other petitioning creditors against ThinkFilm, R2D2, LLC ("R2D2"), CT-1 Holdings, LLC ("CT-1"), Capco Group, LLC ("Capco"), and Capitol Films Development, LLC ("CFD") (collectively, the "Debtors"). On December 18, 2012, Appellant moved for leave to appeal a Bankruptcy Court order denying Appellant's motion to dismiss. Mot. 3:4-6. Appellant's underlying motion to dismiss was based on allegations that the related cases (the "Cases") were filed in bad faith as part of a fraudulent scheme to attempt to deceive the court as to the existence of legitimate *fn2 Mot. 3:16-20. On November 2, 2012 and November 6, 2012, the Bankruptcy Court denied Appellant's motions. Mot. Ex. 1. Appellant now seeks leave to appeal the Orders, contending that this Court should reverse the Bankruptcy Judge's decision and dismiss the

Standard

District courts have jurisdiction to hear appeals from final judgments, orders and decrees, and interlocutory orders and decrees with leave of the court. 28 U.S.C. § 158(a)(1) and (3). Leave to appeal an interlocutory order must be sought by timely motion. Fed. R. Bank. P. 8003(a).

A party may appeal a bankruptcy court's interlocutory order only "with leave of the court." See 28 U.S.C. § 158(a)(3). While district courts have discretionary authority to hear interlocutory appeals, review of interlocutory orders is generally disfavored. See In re Fones4all Corporation, No. CV-01443 JHN, 2010 WL 1172246, at *1 (C.D. Cal. Mar. 23, 2010). Specifically, the Ninth Circuit has explained that courts should not grant leave to appeal from an interlocutory order of a bankruptcy judge unless the following requirements are met: "(1) that there be a controlling question of law, (2) that there be substantial grounds for difference of opinion, and (3) that an immediate appeal may materially advance the ultimate termination of the litigation." In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982).*fn3

Discussion

Here, Appellant seeks leave to challenge the Bankruptcy Court's November 2, 2012, and November 6, 2012 Orders denying Appellant's Motion to Dismiss. Mot. Ex. 1. Appellant argues that the Orders are a final order. However, the Ninth Circuit has held that the denial of a motion to dismiss is an interlocutory order. Dunkley v. Rega Properties, Ltd. (In re Raga ...


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