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In re Melcher

United States District Court, N.D. California

March 29, 2017

IN RE JACQUELINE C. MELCHER

          ORDER GRANTING MOTION TO DISMISS

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         In this appeal from the bankruptcy court's order (1) denying permission for debtor to object to the Trustee's and his attorneys' final applications for compensation, and (2) granting said applications, the Trustee moves to dismiss. The motion is Granted.

         STATEMENT

         Debtor Jacqueline Melcher filed multiple appeals in connection with her bankruptcy (3:16-cv-05851-WHA, 3:16-cv-05852-WHA, 3:16-cv-05853-WHA, 3:16-cv-05982-WHA, and 3:16-cv-06123-WHA). The Trustee's motion for sanctions against debtor remains pending in another case (3:13-cv-04930-WHA). These matters were reassigned to the undersigned following Judge Ronald Whyte's retirement. At debtor's request, the Court previously consolidated the appeals numbered 16-5851, 16-5852, and 16-5853, with 16-5851 as the lead case. Also at debtor's request, the Court previously consolidated the appeals numbered 16-5982 and 16-6123, with 16-5982 as the lead case.

         The Trustee's instant motion to dismiss concerns only the appeal numbered 16-6123, wherein debtor appeals from the bankruptcy court's order dated September 30, 2016, granting the Trustee's and his attorneys' final applications for compensation. The Trustee contends the appeal must be dismissed because debtor failed to timely file her notice of appeal.

         Debtor's response to the Trustee's motion to dismiss was originally due on February 7. On February 8, debtor filed a request for an extension of time (Dkt. No. 18). The undersigned granted the request and extended the deadline to February 17 (Dkt. No. 19). Debtor timely opposed the Trustee's motion on February 17 (Dkt. No. 20), and the Trustee timely replied on February 23 (Dkt. No. 21).

         On February 24, however, debtor filed another version of her opposition that added handwritten corrections and extra exhibits to her original submission (Dkt. No. 22), having neither sought nor received permission to do so. The undersigned nevertheless reviewed the more recent filing and it does not affect the outcome of this order.

         On March 28, debtor filed yet another document titled, “Notice to Court of Open Appeal of the Court's Order Dated September 26, 2016 ¶ Appellant's Opposition to Motion to Dismiss Appeal Objecting to Fees and Expenses of the Trustee and His Attorneys” (Dkt. No. 28). Insofar as this document is intended as a third opposition brief to the instant motion, it is improperly filed and in any case does not affect the outcome of this order. To repeat, however, the instant motion is only to dismiss the appeal numbered 16-6123, from the bankruptcy court's order dated September 30, 2016. The appeal numbered 16-5982, from the bankruptcy court's order dated September 26, 2016, remains unaffected by this order.

         This order follows full briefing and oral argument.

         ANALYSIS

         A federal court must generally first determine whether it has jurisdiction before reaching the merits of a case. In re Ozenne, 841 F.3d 810, 814 (9th Cir. 2016) (en banc) (citing Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007)). Here, debtor, as the appellant, has the burden of establishing that this Court has jurisdiction to hear her case. See Melendres v. Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016). The requirement of a timely notice of appeal is “mandatory and jurisdictional, ” so a reviewing court is “not at liberty to overlook a defect with the notice of appeal no matter how compelling an appellant's argument may be.” Ibid. The same principle holds true in federal bankruptcy appeals. Ozenne, 841 F.3d at 814 (citing In re Mouradick, 13 F.3d 326, 327-28 (9th Cir. 1994)).

         Our circuit's strict construction and compulsory application of the time limit for filing notices of bankruptcy appeals has a long history, briefly summarized herein.

         As our court of appeals explained in Matter of Best Distribution Co., 576 F.2d 1360 (9th Cir. 1978), prior to 1938, petitions for review from bankruptcy orders had to be filed within a “reasonable time” unless local rules provided a specific period. In 1938, however, Section 39(c) of the Bankruptcy Act set forth a 10-day time limit for the filing of such petitions “to provide a uniform degree of finality to orders of bankruptcy judges.” Id. at 1362. In interpreting the 10-day time limit, “the circuits divided on whether the limitation merely restricted the right to file petitions for review, or whether it also restricted the district courts' discretionary power to entertain late petitions.” Id. at 1362-63. In 1942, the Supreme Court held that Congress had expressed no intention, by enacting Section 39(c), to limit the traditional discretion of district courts in this area. Id. at 1363 (citing Pfister v. N. Ill. Fin. Corp., 317 U.S. 144, 152-53 (1942)). “Dissatisfied with the lack of finality that accompanied the discretionary power to entertain late petitions, Congress amended [Section 39(c)] ¶ 1960 for the specific purpose of legislatively overruling Pfister.” Ibid. (citing In re Benefiel, 500 F.2d 1219, 1220-21 (9th Cir. 1974)). Subsequent ...


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