In re Fones4All Corporation

Filing 7

IN CHAMBERS - ORDER DISMISSING CASE by Judge Jacqueline H. Nguyen. DENYING MOTION for Leave to To Appeal the Order Denying Motion to Dismiss Under Rule 12(b)(6) of the Federal Rules of Civil Procedure 1 . Case Terminated. Made JS-6. (rrey)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. Title 2:10-cv-01443-JHN In re Fones4All Corporation Date March 23, 2010

Present: The Honorable Alicia Mamer Deputy Clerk

JACQUELINE H. NGUYEN Not Reported Court Reporter / Recorder N/A Tape No.

Attorneys Present for Plaintiffs: Not present Proceedings:

Attorneys Present for Defendants: Not present

ORDER DENYING MOTION FOR LEAVE TO APPEAL (In Chambers)

I. BACKGROUND On February 26, 2010, Defendants Ross Buntrock and Sand Lake Ventures LLC (collectively "Defendants") filed a Motion for Leave to Appeal the Order Denying Motion to Dismiss Under Rule 12(b)(6) ("Motion") (Docket No. 1). The Bankruptcy Court denied Defendants' Motion to Dismiss, finding in part that the joinder of Defendants in the first amended complaint was not barred by the statute of limitations set forth in Section 735 of the Public Utilities Code. (Mot. 3.) The Bankruptcy Court held that the one-year statute of limitations in Section 735 "related back" to the original complaint filed on July 7, 2008. (Id.) Defendants claim this ruling was in error and seek an order dismissing them from the fourth amended complaint. (Id.) II. LEGAL STANDARD Subject to some exceptions inapplicable here, district courts have jurisdiction to hear appeals from interlocutory orders of bankruptcy judges. 28 U.S.C. § 158(a)(2). However, while district courts must hear appeals from final decisions, they have discretionary authority to hear interlocutory appeals. In re City of Desert Hot Springs, No. 02-55835, 339 F.3d 782, 787 (9th Cir. 2003). Courts generally disfavor interlocutory appeals and only grant leave to appeal where three extraordinary factors are met: "[1] refusal would result in wasted litigation and expense, [2] the appeal involves a controlling question of law as to which there is a substantial ground for difference of opinion, and [3] an immediate appeal would materially advance the ultimate termination of the litigation." In re NSB Film Corp., 167 B.R. 176, 180 (9th Cir. 1994); In re 450 S. Burlington Partners LLC, No. CV 09-4097 PSG, 2009 WL 2460880, *5 (C.D. Cal. August 5, 2009). III. DISCUSSION Here, Defendants request leave to file an interlocutory appeal. (Mot. 4.) However, they fail to cite any precedent, or even argue, that the appeal would involve a "controlling question of law as to which there is a substantial ground for difference of opinion." In re NSB Film Corp., 167 B.R. at 180. Defendants
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JS-6

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. Title 2:10-cv-01443-JHN In re Fones4All Corporation Date March 23, 2010

also do not establish how "an immediate appeal would materially advance the ultimate termination of the litigation," since, for example, this appeal would not prevent the pending action from going to trial against the remaining three defendants. Id. For these reasons, the Court declines to exercise its discretionary authority to grant leave to appeal. IV. CONCLUSION Accordingly, the Court DENIES Defendants' Motion. IT IS SO ORDERED.

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CV-90 (06/04)

CIVIL MINUTES - GENERAL

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