United States District Court, S.D. California
IN RE JANET E. LONNEKER, Debtor.
JANET E. LONNEKER, Defendant and Appellee. RICHARD LAMBERTUS, an individual, Plaintiff and Appellant, Adversary No. 16-90054-LA
ORDER DISMISSING APPEAL
JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE
Lambertus (“Lambertus” or
“Appellant”), proceeding pro se, appeals
the Bankruptcy court's order granting Janet E.
Lonneker's (“Lonneker” or
“Appellee”) motion for sanctions. Lonneker moved
for sanctions against Appellant pursuant to Federal Rule of
Civil Procedure (“Fed. R. Civ. P.”) Rule
11 after the Bankruptcy court dismissed Appellant's
second amended complaint (“SAC”). The bankruptcy
court held a hearing on the motion and issued a tentative
ruling with further instructions to the movant. After the
filing of this appeal, the bankruptcy court confirmed a
modified ruling awarding sanctions against Appellant. “
‘Although the issue of whether this Court has
jurisdiction over the appeal was not raised, the Court must
address the question sua sponte'”. In
re Thompson, 633 Fed.Appx. 479, 480 (9th Cir. 2016)
(citing Hostler v. Groves, 912 F.2d 1158, 1160 (9th
Cir.1990). The Court DISMISSES
Lambertus' appeal for lack of appellate jurisdiction.
commenced adversarial proceedings in the chapter 7
bankruptcies of two of the managing members of Liberty Metals
Group, LLC, John M. Lonneker (“John”) and Janet
E. Lonneker (“Debtor” or “Appellee”).
Lambertus filed a complaint for denial of discharge under 11
USC § 727 in both actions; first in Lambertus v.
John Mark Lonneker, Jr., Adversary Proceeding No.
15-90111-LA7 (“the John Action”), then in
Lambertus v. Janet Lonneker, Adversary Proceeding
No. 16-90054 (“the Janet Action”) . Doc. No.
5-1 at 11.
Janet action, Lonneker moved for judgment on the pleadings,
which the bankruptcy court granted with limited leave to
amend. Id. at 47. On January 10, 2017, Lambertus
filed a second amended complaint (“SAC”) in the
Janet Action that was nearly identical to the proposed
amended complaint he sought leave to file in the John Action
Id. at 10, 45. The bankruptcy court issued a
tentative ruling denying Lambertus' motion for leave to
file the amended compliant in the John Action. The tentative
ruling was confirmed as the order of the court on February
23, 2017. Approximately one week later, and in light of the
court's order in the John Action, Appellee filed a motion
to dismiss the SAC in the Janet Action and notified Lambertus
that a motion for sanctions would be filed with the court
unless the SAC was voluntarily dismissed. Id. at 11,
18. Appellee served a copy of the motion for sanctions upon
Lambertus pursuant to Fed. R. Civ. P. Rule 11(c)(2).
Id. at 13.
declined to dismiss the SAC in the Janet action and the Court
granted Appellee's motion to dismiss with prejudice on
March 30, 2017. Lambertus timely appealed. See In re
Lonneker, No. 17CV732-JAH (KSC), 2019 WL 1434708 (S.D.
Cal. Mar. 29, 2019). On or about April 6, 2017, Appellee
filed the motion for sanctions with the bankruptcy court.
Id. at 10- 15. While the order granting
Lonneker's motion to dismiss the SAC in the Janet Action
was on appeal, the bankruptcy court issued a tentative ruling
granting the motion for sanctions. On May 12, 2017, a day
after the hearing on the motion was held, Lonneker filed a
Notice of Lodgment of order on the motion for sanctions for
signature by the judge pursuant to Rule 7054-3(b) of the
Local Rules of the United States Bankruptcy Court for the
Southern District of California. Id. at 46. The
notice informed Lambertus he had seven (7) days within which
to file and serve any objections to the lodged order, and/or
file and serve an alternate order upon Lonneker. Id.
No objections were filed.
bankruptcy court's tentative ruling on the motion for
sanctions indicated a forthcoming order issuing sanctions
against Lambertus in the amount “of $3, 210.00 for
Lonneker's attorney's fees and costs incurred to
dismiss the SAC, plus her attorney's fees and costs
incurred to prosecute this Motion for Sanctions”.
Doc. No. 5-1 at 57. The tentative ruling further
instructed that the latter award was to be established by
declaration to be filed within one week of the hearing. The
court issued a minute order instructing counsel to
“file a declaration and order with blanks in it for
additional fees and cost for his services for the Court to
fill in and serve on [ ] Lambertus.” Id. at
24, 2017, Appellant filed a notice of appeal with this Court,
listing the date on which judgment, order, or decree was
entered as May 12, 2017. Doc. No. 1-2 at 1. The
bankruptcy court confirmed its tentative ruling, as
modified, on May 26, 2017. Id. at 2,
52-57. The final modified order was not made part
of the appellate record.
Court has jurisdiction to hear appeals from a final order of
the bankruptcy court pursuant to 28 U.S.C. § 158(a);
See In re AFI Holding, Inc., 530 F.3d 832, 836 (9th
Cir. 2008) (“[A] bankruptcy court order is final and
thus appealable where it (1) resolves and seriously affects
substantive rights and (2) finally determines the discrete
issue to which it is addressed.”)
[A]n order awarding sanctions … is not final until
judgment is entered, an appeal generally must be dismissed as
premature when it is taken after an order awarding sanctions
… but before the determination of damages and entry of
In re Thompson, 633 Fed.Appx. 479, 480 (9th Cir.
2016) (citations omitted).
In re Thompson, Lambertus never appealed from the
final order of the bankruptcy court. Lambertus filed the
notice of appeal two days prior to the entry of the Court
Modified Order and only included in the appellate record the
bankruptcy court's tentative ruling. 633 Fed.Appx. at
480. Although an appellate court may treat a premature appeal
as filed on the date of and after the entry of judgment
pursuant to Federal Rule of Appellate Procedure 4(a)(2), it
may do so only “when all that remain[s] [i]s the
clerk's ministerial task of entering a Rule 58
judgment.” Id. at 481 (quoting Kennedy v.
Applause, Inc.,90 F.3d 1477, 1483 (9th Cir.
1996)(internal quotations omitted). Here the bankruptcy
court's tentative ruling granting sanctions expressly
called for Lonneker to file and serve additional evidence in
the form of a declaration detailing the fees and costs
associated with bringing the sanction motion, thus reserving
a determination of the total ...