Whitney v. Pacific Trading Ventures et al
ORDER GRANTING IN PART AND DEFERRING RULING IN PART ON APPELLANT'S ADMINISTRATIVE REQUEST FILED AUGUST 15, 2014; DIRECTING APPELLANT TO SHOW CAUSE WHY APPEAL SHOULD NOT BE DISMISSED AS MOOT. Appellant is ordered to show cause, in writin g and no later than September 5, 2014, why the instant appeal should not be dismissed as moot. Signed by Judge Maxine M. Chesney on August 19, 2014. (mmclc1, COURT STAFF) (Filed on 8/19/2014) (Additional attachment(s) added on 8/19/2014: # 1 Certificate/Proof of Service) (tlS, COURT STAFF).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. C-13-5766 MMC
PACIFIC THOMAS CORPORATION, dba
THOMAS CAPITAL, dba SAFE STORAGE,
Bankruptcy Adv. Proc. No. 13-04079 MEH
For the Northern District of California
United States District Court
ORDER GRANTING IN PART AND
DEFERRING RULING IN PART ON
REQUEST FILED AUGUST 15, 2014;
DIRECTING APPELLANT TO SHOW
CAUSE WHY APPEAL SHOULD NOT BE
DISMISSED AS MOOT
KYLE EVERETT, Chapter 11 Trustee,
RANDALL WHITNEY, et al.,
Before the Court is appellant Randall Whitney’s Administrative Request, filed August
15, 2014, to “Consolidate Appeals for Briefing and to Vacate Due Date for Filing Opening
Brief Pending Setting of Dates in Appeal No C-14-3465-MMC or Extend Briefing Date.”
Having read and considered the request, the Court rules as follows.
To the extent the administrative request seeks relief from the August 15, 2014
deadline to file the opening brief in the instant appeal, the request is hereby GRANTED, for
the reason that the instant appeal, as discussed below, appears to be moot.
To the extent the administrative request seeks additional relief, the Court hereby
DEFERS ruling thereon, and, for the reasons stated below, will direct appellant to show
cause why the instant appeal should not be dismissed as moot.
In the instant appeal, appellant seeks review of a preliminary injunction, filed
November 18, 2013, by which injunction appellant was prohibited from, inter alia, entering
the business premises of the debtor and from collecting rent owed to the debtor. (See
Record on Appeal, Doc. 7, Attachment 25.) Thereafter, the bankruptcy court conducted a
trial, and, on July 8, 2014, filed a Decision After Trial, in which it issued, inter alia, a
permanent injunction “consistent” with the terms of the preliminary injunction. (See In re
Pacific Thomas Corp., C-14-3465, Doc. 1, Ex. A.) Appellant filed a notice of appeal from
said Decision, which appeal is pending before this Court as Civil Case No. 14-3465 MMC.
Where, as here, a party appeals from an order granting a preliminary injunction, and
subsequently appeals from an order granting a permanent injunction, the appeal from the
order granting a preliminary injunction is subject to dismissal as moot and the appellate
court considers only the merits of the appeal from the permanent injunction. See, e.g.,
Smith v. Illinois Bell Telephone Co., 270 U.S. 587, 588-89 (1926) (dismissing as moot
appeal from order granting preliminary injunction where “interlocutory injunction had
become merged in the final decree”; considering merits of appeal from permanent
injunction); Planned Parenthood Arizona Inc. v. Betlach, 727 F.3d 960, 962-63 (9th Cir.
2013) (holding “district court’s entry of final judgment and a permanent injunction moot[ed]
[defendant’s] appeal of the preliminary injunction”; dismissing as moot appeal from order
granting preliminary injunction and considering merits of appeal from order granting
Accordingly, appellant is hereby ORDERED TO SHOW CAUSE, in writing and no
later than September 5, 2014, why the instant appeal from the order granting a preliminary
injunction should not be dismissed as moot.
IT IS SO ORDERED.
Dated: August 19, 2014
MAXINE M. CHESNEY
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?