Melcher v. Richardson

Filing 61

ORDER by Judge Ronald M. Whyte Dismissing Appeals; denying (57) Motion in case 5:16-cv-00165-RMW. (rmwlc2, COURT STAFF) (Filed on 8/22/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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JACQUELINE C. MELCHER,

Case No. 16-cv-00165-RMW

Appellant,
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v.

ORDER DISMISSING APPEALS

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Re: Dkt. No. 49, 57

JOHN W. RICHARDSON, Trustee in
Bankruptcy,
Appellee.

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Appellant Jacqueline Melcher appeals two orders of the bankruptcy court entered in Case

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No. 01-53251: 1) Order Denying Request for Leave to File Objection to Application for

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Compensation and Expense Reimbursement of Trustee’s Professionals, Bankr. Dkt. No. 3900, and

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2) Order Approving Fifth Application for Compensation and Expense Reimbursement, Bankr.

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Dkt. No. 3903. Dkt. No. 49. The court heard argument on August 19, 2016. The court treats

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appellant’s notice of appeal as a motion for leave to appeal interlocutory orders of the bankruptcy

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court and denies the motion. The appeal is dismissed. Appellant’s motion to file additional

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excerpts of the record, Dkt. No. 57, is denied as moot.

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I.

BACKGROUND

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Appellant filed a Chapter 11 bankruptcy petition in June 2001, which was converted to a

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Chapter 7 case in September 2008. On November 6, 2014, the bankruptcy court entered an order
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ORDER DISMISSING APPEALS
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requiring appellant to obtain court permission before filing any further pleadings in the case due to

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her long history of frivolous filings. ER0031-35. On November 17, 2015, counsel for the trustee

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filed a fifth application for interim compensation and expense reimbursement and a request for

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payment of an amount previously approved. ER0082-185. On December 2, 2015, appellant filed a

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request for permission to file an objection to the application with a proposed objection attached.

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ER0199-213. On December 8, 2015, the bankruptcy court denied appellant’s request. ER 0214-15.

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The bankruptcy court then granted counsel for the trustee’s compensation and expense

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reimbursement application as unopposed. ER0225-26. Appellant appeals both orders.

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II.

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ANALYSIS
An interim compensation award is an interlocutory order because further proceedings may

United States District Court
Northern District of California

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affect the scope of compensation awarded. See In re Four Seas Ctr., Ltd., 754 F.2d 1416, 1419

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(9th Cir. 1985); In re Roderick Timber Co., 185 B.R. 601, 604 (B.A.P. 9th Cir. 1995). The court

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finds that the bankruptcy court’s order denying leave to object is also interlocutory because

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appellant may request permission to file an objection to the final compensation award.

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Interlocutory orders are not appealable as of right; the debtor must first obtain leave of

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court. See 28 U.S.C. § 158(a)(3) (district courts have jurisdiction to hear appeals from

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interlocutory orders “with leave of court”); see also Fed. R. Bankr. P. 8004(a) (“To appeal from an

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interlocutory order or decree of a bankruptcy court under 28 U.S.C. § 158(a)(3), a party must file

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with the bankruptcy clerk a notice of appeal . . . accompanied by a motion for leave to

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appeal . . .”). However, if an appellant files a notice of appeal of an interlocutory order without a

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motion for leave, the district court “may order the appellant to file a motion for leave, or treat the

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notice of appeal as a motion for leave and either grant or deny it.” Fed. R. Bankr. P. 8004(d).

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“Granting leave is appropriate if the order involves a controlling question of law where

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there is substantial ground for difference of opinion and when the appeal is in the interest of

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judicial economy because an immediate appeal may materially advance the ultimate termination of

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the litigation.” In re Travers, 202 B.R. 624, 626 (B.A.P. 9th Cir. 1996) (quoting In re Kashani,

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190 B.R. 875, 882 (B.A.P. 9th Cir. 1995)). Appellant does not identify any legal issue as to which
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ORDER DISMISSING APPEALS
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there is substantial ground for difference of opinion; it is not clear that appellant makes any

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substantive legal challenge to either order. Nor would permitting an interlocutory appeal be in the

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interest of judicial economy: “Because interim awards are interlocutory and often require future

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adjustments, they are always subject to the court’s reexamination and adjustment during the

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course of the case.” In re Strand, 375 F.3d 854, 858 (9th Cir. 2004) (emphasis in original). Even if

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this court overturned the interim compensation award, the bankruptcy court would still have

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discretion to adjust the final award of compensation. Therefore, the court denies appellant leave to

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appeal the bankruptcy court’s interlocutory orders at Bankr. Dkt. Nos. 3900 and 3903.

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III.

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United States District Court
Northern District of California

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CONCLUSION
Exercising its discretion to consider the notice of appeal as a motion for leave to appeal an

interlocutory order, the court denies appellant leave and dismisses the appeal.
IT IS SO ORDERED.
Dated: August 22, 2016
______________________________________
Ronald M. Whyte
United States District Judge

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16-cv-00165-RMW
ORDER DISMISSING APPEALS
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