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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 JACQUELINE C. MELCHER, Case No. 16-cv-00165-RMW Appellant, 13 v. ORDER DISMISSING APPEALS 14 15 16 Re: Dkt. No. 49, 57 JOHN W. RICHARDSON, Trustee in Bankruptcy, Appellee. 17 Appellant Jacqueline Melcher appeals two orders of the bankruptcy court entered in Case 18 No. 01-53251: 1) Order Denying Request for Leave to File Objection to Application for 19 Compensation and Expense Reimbursement of Trustee’s Professionals, Bankr. Dkt. No. 3900, and 20 2) Order Approving Fifth Application for Compensation and Expense Reimbursement, Bankr. 21 Dkt. No. 3903. Dkt. No. 49. The court heard argument on August 19, 2016. The court treats 22 appellant’s notice of appeal as a motion for leave to appeal interlocutory orders of the bankruptcy 23 court and denies the motion. The appeal is dismissed. Appellant’s motion to file additional 24 excerpts of the record, Dkt. No. 57, is denied as moot. 25 I. BACKGROUND 26 Appellant filed a Chapter 11 bankruptcy petition in June 2001, which was converted to a 27 Chapter 7 case in September 2008. On November 6, 2014, the bankruptcy court entered an order 1 28 16-cv-00165-RMW ORDER DISMISSING APPEALS FC 1 requiring appellant to obtain court permission before filing any further pleadings in the case due to 2 her long history of frivolous filings. ER0031-35. On November 17, 2015, counsel for the trustee 3 filed a fifth application for interim compensation and expense reimbursement and a request for 4 payment of an amount previously approved. ER0082-185. On December 2, 2015, appellant filed a 5 request for permission to file an objection to the application with a proposed objection attached. 6 ER0199-213. On December 8, 2015, the bankruptcy court denied appellant’s request. ER 0214-15. 7 The bankruptcy court then granted counsel for the trustee’s compensation and expense 8 reimbursement application as unopposed. ER0225-26. Appellant appeals both orders. 9 II. 10 ANALYSIS An interim compensation award is an interlocutory order because further proceedings may United States District Court Northern District of California 11 affect the scope of compensation awarded. See In re Four Seas Ctr., Ltd., 754 F.2d 1416, 1419 12 (9th Cir. 1985); In re Roderick Timber Co., 185 B.R. 601, 604 (B.A.P. 9th Cir. 1995). The court 13 finds that the bankruptcy court’s order denying leave to object is also interlocutory because 14 appellant may request permission to file an objection to the final compensation award. 15 Interlocutory orders are not appealable as of right; the debtor must first obtain leave of 16 court. See 28 U.S.C. § 158(a)(3) (district courts have jurisdiction to hear appeals from 17 interlocutory orders “with leave of court”); see also Fed. R. Bankr. P. 8004(a) (“To appeal from an 18 interlocutory order or decree of a bankruptcy court under 28 U.S.C. § 158(a)(3), a party must file 19 with the bankruptcy clerk a notice of appeal . . . accompanied by a motion for leave to 20 appeal . . .”). However, if an appellant files a notice of appeal of an interlocutory order without a 21 motion for leave, the district court “may order the appellant to file a motion for leave, or treat the 22 notice of appeal as a motion for leave and either grant or deny it.” Fed. R. Bankr. P. 8004(d). 23 “Granting leave is appropriate if the order involves a controlling question of law where 24 there is substantial ground for difference of opinion and when the appeal is in the interest of 25 judicial economy because an immediate appeal may materially advance the ultimate termination of 26 the litigation.” In re Travers, 202 B.R. 624, 626 (B.A.P. 9th Cir. 1996) (quoting In re Kashani, 27 190 B.R. 875, 882 (B.A.P. 9th Cir. 1995)). Appellant does not identify any legal issue as to which 2 28 16-cv-00165-RMW ORDER DISMISSING APPEALS FC 1 there is substantial ground for difference of opinion; it is not clear that appellant makes any 2 substantive legal challenge to either order. Nor would permitting an interlocutory appeal be in the 3 interest of judicial economy: “Because interim awards are interlocutory and often require future 4 adjustments, they are always subject to the court’s reexamination and adjustment during the 5 course of the case.” In re Strand, 375 F.3d 854, 858 (9th Cir. 2004) (emphasis in original). Even if 6 this court overturned the interim compensation award, the bankruptcy court would still have 7 discretion to adjust the final award of compensation. Therefore, the court denies appellant leave to 8 appeal the bankruptcy court’s interlocutory orders at Bankr. Dkt. Nos. 3900 and 3903. 9 III. 10 United States District Court Northern District of California 11 12 13 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 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 28 16-cv-00165-RMW ORDER DISMISSING APPEALS FC

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