United States District Court, N.D. California
IN RE JACQUELINE C. MELCHER
ORDER GRANTING MOTION TO DISMISS
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
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.
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
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.
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).
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.
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.
order follows full briefing and oral argument.
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)).
circuit's strict construction and compulsory application
of the time limit for filing notices of bankruptcy appeals
has a long history, briefly summarized herein.
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 ...