Batista et al v. Alvarenga Mendes

Filing 20

Order Dismissing Appeal for Lack of Jurisdiction. Motions terminated: 1 Bankruptcy Appeal filed by MMX Mineracao e Metalicos S.A., Centennial Asset Mining Fund, LLC., Eike Batista, 10 Appellee's Brief filed by Bernardo Bicalho Alvar enga Mendes, 9 Appellant's Brief filed by MMX Mineracao e Metalicos S.A., Centennial Asset Mining Fund, LLC., Eike Batista, 19 Appellee's Brief filed by Jay L. Westbrook, Leif M. Clark, Ralph R. Mabey, Daniel M. Glosband. Signed by Judge Robert N. Scola, Jr on 4/2/2018. (vmz) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

United States District Court
for the
Southern District of Florida
Eike Batista, and others,
Appellants,
v.
Bernardo Bicalho Alvarenga
Mendes, and others, Appellees.

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Appeal from the United States
Bankruptcy Court for the Southern
District of Florida
District Case No. 17-24308-Civ-Scola
(BKC Docket No. 17-16113-RAM)

Order Dismissing Appeal for Lack of Jurisdiction
This matter is before the Court on the Appellants MMX Mineração e
Metalicos S.A. (“MMX”), Centennial Asset Mining Fund, LLC, and Eike Batista’s
(collectively, “Appellants”) appeal of the Bankruptcy Court’s Order Denying
Objection to Recognition and Motion to Dismiss Chapter 15 Case. (See Notice
of Appeal, ECF No. 1). After reviewing the parties’ briefs, the record on appeal,
the relevant legal authorities, and for the reasons explained below, the Court
dismisses this appeal for lack of jurisdiction.
The foreign debtor, MMX Sudeste Mineração S.A. (the “Debtor”), through
its duly appointed judicial administrator, Bernardo Bicalho Alvarenga Mendes
(“Trustee”), commenced a proceeding for recognition of a foreign proceeding
under Chapter 15 of the Bankruptcy Code, 11 U.S.C. §§ 1501-1532, which the
bankruptcy court granted. (See BKC ECF No. 9.) The Appellant MMX, the
parent company of the Debtor, filed an objection to the order of recognition and
a motion to dismiss, arguing that a debtor under Chapter 15 must meet the
requirements under 11 U.S.C. § 109(a), relying upon the court’s decision in In
re Barnet, 737 F.3d 238 (2d Cir. 2013). The bankruptcy court denied the
motion to dismiss, stating in its order that it “declines to apply the holding of In
re Barnet, that an entity that is the subject of a foreign proceeding must have
property in the United States to have the foreign proceeding recognized under
Chapter 15.” (See Order, BKC ECF No. 33 at 2.) Thereafter, the Appellants filed
a notice of appeal of the bankruptcy court’s Order. (See BKC ECF No. 44.)
Pursuant to 28 U.S.C. § 158(a), the district courts have jurisdiction to
hear appeals from final judgments and orders, and interlocutory orders of the
bankruptcy judges, with prior leave of court. 28 U.S.C. § 158(a)(1),(3). The
Appellants did not seek leave to appeal; rather they assert that the Court has
jurisdiction pursuant to § 158(a)(1). Although the parties do not appear to
dispute that this Court has jurisdiction, the Court is obligated to consider
jurisdiction “even if it means raising the issue sua sponte.” In re Donovan, 532

F.3d 1134, 1136 (11th Cir. 2008) (citing AT&T Mobility, LLC v. Nat’l Ass’n for
Stock Car Auto Racing, Inc., 494 F.3d 1356, 1359 (11th Cir. 2007)).
The Appellants contend that the bankruptcy Order is a final appealable
order under the flexible interpretation of finality in the context of bankruptcy
appeals.1 However, upon review, the Court disagrees.
While the Appellants are correct that finality is a more flexible concept in
bankruptcy, the increased flexibility “does not render appealable an order
which does not finally dispose of a claim or adversary proceeding.” In re
Donovan, 532 F.3d at 1136. Indeed, to be final, “a bankruptcy court order must
completely resolve all of the issues pertaining to a discrete claim, including
issues as to the proper relief.” Id. at 1136-37 (quoting In re Atlas, 210 F.3d
1305, 1308 (11th Cir. 2000)) (internal quotations omitted). Generally, an order
denying a motion to dismiss is not a final appealable order. The Appellants
nonetheless contend that the Order completely resolves the dispute between
the parties on a fundamental and discrete issue of law. (See ECF No. 9 at 9
n.3.) However, the same could be argued with respect to virtually any order
denying a motion to dismiss, as many involve discrete issues of law the
determination of which affects the continuation of a case. Furthermore, the
Court declines Appellants’ urging the Court to apply the same concepts applied
in In re Dolan, 550 B.R. 582, 588 (S.D. Fla. 2016) (Middlebrooks, J.), as the
orders appealed in In re Dolan completely resolved the dispute between the
parties and left the bankruptcy court with nothing further to do. Such is not
the case here, where the bankruptcy proceedings continue. As a result, the
Court does not view the Order as a final appealable order under 28 U.S.C. §
158(a)(1).
Accordingly, the Court dismisses this appeal for lack of jurisdiction. The
oral argument scheduled for April 24, 2018 is canceled, and the Clerk of Court
is directed to close this case.
Done and ordered at Miami, Florida, on April 2, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge

The Appellees do not address the issue of jurisdiction in their response brief, thus
the Court assumes their agreement with the Appellants’ jurisdictional statement.
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