Lambertus v. Lonneker

Filing 6

Order Dismissing Appeal. The Court finds the appeal premature and dismisses the appeal for lack of jurisdiction. Signed by Judge John A. Houston on 11/14/2019. (All non-registered users served via U.S. Mail Service) (tcf)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

IN RE: JANET E. LONNEKER,

12

Civil No.: 17cv1079-JAH (KSC)
Bankruptcy No. 15-08140-LA7
Adversary No. 16-90054-LA

Debtor.

13
14

Plaintiff and Appellant,

15
16
17
18
19

ORDER DISMISSING APPEAL

RICHARD LAMBERTUS, an individual,
v.
JANET E. LONNEKER,
Defendant and Appellee.
I.

INTRODUCTION

20

Richard Lambertus (“Lambertus” or “Appellant”), proceeding pro se, appeals the

21

Bankruptcy court’s order granting Janet E. Lonneker’s (“Lonneker” or “Appellee”) motion

22

for sanctions. Lonneker moved for sanctions against Appellant pursuant to Federal Rule

23

of Civil Procedure (“Fed. R. Civ. P.”) Rule 11 after the Bankruptcy court dismissed

24

Appellant’s second amended complaint (“SAC”). The bankruptcy court held a hearing on

25

the motion and issued a tentative ruling with further instructions to the movant. After the

26

filing of this appeal, the bankruptcy court confirmed a modified ruling awarding sanctions

27

against Appellant. “ ‘Although the issue of whether this Court has jurisdiction over the

28

appeal was not raised, the Court must address the question sua sponte’”. In re Thompson,
1
17cv1079-JAH (KSC)

1

633 F. App'x 479, 480 (9th Cir. 2016) (citing Hostler v. Groves, 912 F.2d 1158, 1160 (9th

2

Cir.1990). The Court DISMISSES Lambertus’ appeal for lack of appellate jurisdiction.

3

II.

BACKGROUND

4

Lambertus commenced adversarial proceedings in the chapter 7 bankruptcies of two

5

of the managing members of Liberty Metals Group, LLC, John M. Lonneker (“John”) and

6

Janet E. Lonneker (“Debtor” or “Appellee”). Lambertus filed a complaint for denial of

7

discharge under 11 USC § 727 in both actions; first in Lambertus v. John Mark Lonneker,

8

Jr., Adversary Proceeding No. 15-90111-LA7 (“the John Action” ), then in Lambertus v.

9

Janet Lonneker, Adversary Proceeding No. 16-90054 (“the Janet Action”) . Doc. No. 5-1

10

at 11.

11

In the Janet action, Lonneker moved for judgment on the pleadings, which the

12

bankruptcy court granted with limited leave to amend. Id. at 47. On January 10, 2017,

13

Lambertus filed a second amended complaint (“SAC”) in the Janet Action that was nearly

14

identical to the proposed amended complaint he sought leave to file in the John Action Id.

15

at 10, 45. The bankruptcy court issued a tentative ruling denying Lambertus’ motion for

16

leave to file the amended compliant in the John Action. The tentative ruling was confirmed

17

as the order of the court on February 23, 2017. Approximately one week later, and in light

18

of the court’s order in the John Action, Appellee filed a motion to dismiss the SAC in the

19

Janet Action and notified Lambertus that a motion for sanctions would be filed with the

20

court unless the SAC was voluntarily dismissed. Id. at 11, 18. Appellee served a copy of

21

the motion for sanctions upon Lambertus pursuant to Fed. R. Civ. P. Rule 11(c)(2). Id. at

22

13.

23

Lambertus declined to dismiss the SAC in the Janet action and the Court granted

24

Appellee’s motion to dismiss with prejudice on March 30, 2017. Lambertus timely

25

appealed. See In re Lonneker, No. 17CV732-JAH (KSC), 2019 WL 1434708 (S.D. Cal.

26

Mar. 29, 2019). On or about April 6, 2017, Appellee filed the motion for sanctions with

27

the bankruptcy court. Id. at 10- 15. While the order granting Lonneker’s motion to dismiss

28

the SAC in the Janet Action was on appeal, the bankruptcy court issued a tentative ruling
2
17cv1079-JAH (KSC)

1

granting the motion for sanctions. On May 12, 2017, a day after the hearing on the motion

2

was held, Lonneker filed a Notice of Lodgment of order on the motion for sanctions for

3

signature by the judge pursuant to Rule 7054-3(b) of the Local Rules of the United States

4

Bankruptcy Court for the Southern District of California. Id. at 46. The notice informed

5

Lambertus he had seven (7) days within which to file and serve any objections to the lodged

6

order, and/or file and serve an alternate order upon Lonneker. Id. No objections were filed.

7

The bankruptcy court’s tentative ruling on the motion for sanctions indicated a

8

forthcoming order issuing sanctions against Lambertus in the amount “of $3,210.00 for

9

Lonneker’s attorney’s fees and costs incurred to dismiss the SAC, plus her attorney’s fees

10

and costs incurred to prosecute this Motion for Sanctions”. Doc. No. 5-1 at 57.

11

tentative ruling further instructed that the latter award was to be established by declaration

12

to be filed within one week of the hearing. The court issued a minute order instructing

13

counsel to “file a declaration and order with blanks in it for additional fees and cost for his

14

services for the Court to fill in and serve on [ ] Lambertus.” Id. at 63.

The

15

On May 24, 2017, Appellant filed a notice of appeal with this Court, listing the date

16

on which judgment, order, or decree was entered as May 12, 2017. Doc. No. 1-2 at 1. The

17

bankruptcy court confirmed its tentative ruling, as modified, on May 26, 2017. Id at 2, 52-

18

57.1 The final modified order was not made part of the appellate record.

19

III. DISCUSSION

20

This Court has jurisdiction to hear appeals from a final order of the bankruptcy court

21

pursuant to 28 U.S.C. § 158(a); See In re AFI Holding, Inc., 530 F.3d 832, 836 (9th Cir.

22

2008) (“[A] bankruptcy court order is final and thus appealable where it (1) resolves and

23

seriously affects substantive rights and (2) finally determines the discrete issue to which it

24

is addressed.”)

25
26
27
1

28

Appellant’s designation of record lists the Court Modified Order Regarding Defendant’s Motion for
Sanctions Under Federal Rule 11 as bankruptcy docket number 100, signed and modified on May 26.
2017. Despite the designation, the modified order is not included in the record on appeal.

3
17cv1079-JAH (KSC)

1

3

[A]n order awarding sanctions … is not final until judgment is entered, an appeal
generally must be dismissed as premature when it is taken after an order awarding
sanctions … but before the determination of damages and entry of judgment.
In re Thompson, 633 F. App’x 479, 480 (9th Cir. 2016) (citations omitted).

4

As in In re Thompson, Lambertus never appealed from the final order of the

5

bankruptcy court. Lambertus filed the notice of appeal two days prior to the entry of the

6

Court Modified Order and only included in the appellate record the bankruptcy court’s

7

tentative ruling. 633 F. App’x at 480. Although an appellate court may treat a premature

8

appeal as filed on the date of and after the entry of judgment pursuant to Federal Rule of

9

Appellate Procedure 4(a)(2), it may do so only “when all that remain[s] [i]s the clerk’s

10

ministerial task of entering a Rule 58 judgment.” Id. at 481 (quoting Kennedy v. Applause,

11

Inc., 90 F.3d 1477, 1483 (9th Cir.1996)(internal quotations omitted). Here the bankruptcy

12

court’s tentative ruling granting sanctions expressly called for Lonneker to file and serve

13

additional evidence in the form of a declaration detailing the fees and costs associated with

14

bringing the sanction motion, thus reserving a determination of the total award of sanctions

15

to be imposed. “The remaining tasks were unlike the ‘ministerial task’ of entering

16

judgment, Kennedy, 90 F.3d at 1483, so Rule 4(a)(2) does not permit [the Court] to

17

treat [Lambertus’] appeal as timely.” Id.

2

18
19

Accordingly, and for the reasons set forth, the Court finds the appeal premature and
DISMISSES the appeal for lack of jurisdiction.

20
21
22
23

DATED: November 14, 2019.
_________________________________
HON. JOHN A. HOUSTON
UNITED STATES DISTRICT JUDGE

24
25
26
27
28
4
17cv1079-JAH (KSC)