Whitney v. Pacific Thomas Corporation

Filing 11

ORDER DISCHARGING ORDER TO SHOW CAUSE; DIRECTING APPELLANT TO FILE MOTION FOR LEAVE TO APPEAL. The Court directs appellant to file, no later than February 3, 2017, a motion for leave that conforms with the requirements set forth in Rule 8004(b )(1). No later than February 17, 2017, appellees shall file any response thereto. As of February 17, 2017, the Court will take under submission the issue of whether to afford appellant leave to appeal the subject interlocutory orders. Signed by Judge Maxine M. Chesney on January 17, 2017. (mmclc1, COURT STAFF) (Filed on 1/17/2017) (Additional attachment(s) added on 1/17/2017: # 1 Certificate/Proof of Service) (tlS, COURT STAFF).

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8
9
10

United States District Court
Northern District of California

11

In re:

Case No. 16-cv-06443-MMC

PACIFIC THOMAS CORPORATION,
dba PACIFIC THOMAS CAPITAL, dba
SAFE STORAGE,

12

Debtor

ORDER DISCHARGING ORDER TO
SHOW CAUSE; DIRECTING
APPELLANT TO FILE MOTION FOR
LEAVE TO APPEAL

13
14
15

By order filed December 9, 2016, the Court directed appellant Randall Whitney to

16

show cause why the above-titled appeal should not be dismissed for failure to timely

17

designate the record on appeal. Before the Court is appellant's Response thereto, to

18

which appellee Kyle Everett has filed an Objection and Reply. Having read and

19

considered the parties' respective written submissions, the Court rules as follows.

20

The Court finds appellant has sufficiently explained why he did not file, within the

21

time provided by Rule 8009(a)(1) of the Federal Rules of Bankruptcy Procedure, a

22

designation of the items to be included in the record.1

23
24
25

Accordingly, the order to show cause issued December 9, 2016, is hereby
DISCHARGED.
In his Objection and Reply, appellee argues that the above-titled appeal should be

26
1

27
28

Subsequent to issuance of the Court's order of December 9, 2016, appellant
designated the record, and the Clerk of the Bankruptcy Court thereafter transmitted the
record to the Clerk of the District Court.

1

dismissed for a reason not addressed in the Court's order of December 9, 2016,

2

specifically, that the orders appellant seeks to challenge are interlocutory in nature, and

3

that the Court lacks jurisdiction to review such orders. The Court next addresses this

4

additional issue.

5

The two orders attached to the notice of appeal grant requests for interim payment

6

of fees and expenses, and, consequently, are interlocutory in nature. See Leichty v.

7

Neary (In re Strand), 375 F.3d 854, 858 (9th Cir. 2004) (holding "awards of interim

8

compensation are tentative, hence reviewable -- and revisable -- at the end of the case")

9

(internal quotation and citation omitted); Callister v. Ingersoll-Rand Financial Corp. (In re
Callister), 673 F.2d 305, 307 (10th Cir. 1982) (holding "interim awards [of fees]" are

11
United States District Court
Northern District of California

10

"interlocutory").

12

A district court has jurisdiction to hear an appeal from an interlocutory order,

13

however, provided the appellant obtains "leave of the court" to appeal. See 28 U.S.C.

14

§ 158(a)(3). Where, as here, a party seeking to appeal an interlocutory order has not

15

filed with the notice of appeal a motion for leave to appeal, the district court "may order

16

the appellant to file a motion for leave, or treat the notice of appeal as a motion for leave

17

and either grant or deny it." See Fed. R. Bankr. P. 8004(d).

18

In this instance, the Court declines to treat the notice of appeal as a motion for

19

leave, as appellant has not provided in said notice all of the information an appellant is

20

required to include in a motion for leave. See Fed. R. Bankr. P. 8004(b)(1) (setting forth

21

five items that "must" be included in "motion for leave to appeal").2

22

Accordingly, the Court hereby DIRECTS appellant to file, no later than February 3,

23

2017, a motion for leave that conforms with the requirements set forth in Rule 8004(b)(1).

24

No later than February 17, 2017, appellees shall file any response thereto. As of

25

February 17, 2017, the Court will take under submission the issue of whether to afford

26
27
28

2

The only part of the requisite content provided by appellant is a copy of each of
the two interlocutory orders he challenges.
2

1
2

appellant leave to appeal the subject interlocutory orders.3
IT IS SO ORDERED.

3
4

Dated: January 17, 2017
MAXINE M. CHESNEY
United States District Judge

5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3

In the event the Court affords appellant leave to appeal, the Court will, at that
time, set a briefing schedule on the merits of the appeal.
3