B & H MANAGEMENT LLC v. DIXON

Filing 5

ORDER denying 3 Motion for Leave to Appeal. Ordered by U.S. District Judge Clay D. Land on 01/03/2014. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
B&H MANAGEMENT, LLC,

*

Plaintiff,

*

vs.

*

JOHN G. DIXON, JR.,

*

Defendant.

CASE NO. 3:13-CV-141 (CDL)

*
O R D E R

Plaintiff seeks leave to file an interlocutory appeal from
the

bankruptcy

judge’s

order

denying

summary

judgment

in

adversary proceeding in the underlying bankruptcy case.

an
The

issue presented for appeal is the extent to which the bankruptcy
court must
default

give collateral estoppel effect to a state court

judgment,

dischargeability
debtor.
the

of

particularly

as

Plaintiff’s

claim

relates

against

the

to

the

bankruptcy

To have that issue heard by this Court at this stage of

proceedings,

Plaintiff

must

first

pursue the interlocutory appeal.
the

it

Court

denies

Plaintiff’s

obtain

permission

to

For the following reasons,
request

for

an

interlocutory

appeal.
DISCUSSION
The

Federal

Rules

of

Bankruptcy

Procedure

permit

interlocutory appeals from a bankruptcy judge’s rulings to the

district court.

See Fed. R. Bankr. P. 8001(b).

The district

court has jurisdiction to hear such appeals with leave of court.
See 28 U.S.C. §158(a)(3).
district

court

The statutory authority establishing

jurisdiction

over

interlocutory

bankruptcy

appeals does not, however, provide guidance for determining when
a district court should exercise its discretion to entertain
such appeals.

Because district courts sit as courts of appeal

when hearing appeals from bankruptcy courts, it follows that the
district court should follow the same principles that the court
of

appeals

would

follow

when

deciding

whether

to

permit

an

interlocutory appeal from a non-final judgment.
Generally,
matter of right.

a

non-final

judgment

is

not

appealable

as

a

And the parties in this action agree that the

bankruptcy order at issue here is not automatically appealable.
One of the statutory exceptions to the final judgment rule is 28
U.S.C. §1292(b).
this

statutory

The parties in the present action agree that
provision

provides

guidance

as

to

when

an

interlocutory appeal should be permitted.

The Eleventh Circuit

tells

under

us

that

an

interlocutory

appeal

appropriate if three things happen:

§

1292(b)

is

(1) the judge whose order

is being appealed certifies in writing that his order “involves
a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination

2

of the litigation;” (2) the party, within ten days of the lower
court’s order, applies for permission to appeal; and (3) the
appellate

court

decides

interlocutory review.

in

its

discretion

to

exercise

McFarlin v. Conseco Servs., LLC, 381 F.3d

1251, 1253 (11th Cir. 2004).
In

the

present

motion,

both

parties

focus

discretionary factors that the appellate court should

on

the

consider

under §1292(b): (1) whether the appeal involves a controlling
question of law, (2) whether there is substantial difference of
opinion as to that question; and (3) whether an immediate appeal
will

materially

litigation.
the

judge

advance

the

ultimate

termination

of

the

Neither party even mentions the requirement that
whose

ruling

is

being

appealed

must

provide

a

certificate as to the presence of these three factors, and the
cases relied upon by both parties likewise ignore the §1292(b)
certificate requirement.

See, e.g., Trauner v. State Bank &

Trust Co., Civil Action No. 1:12-cv-03761-JEC-, 2013 WL 5350611
(N.D. Ga. Sept. 23, 2013) (citing Laurent v. Herkert, 196 F.
App’x 771 (11th Cir. 2006).

This Court knows of no reason why

such a certificate would be important to the court of appeals
when it decides whether to permit a discretionary interlocutory
appeal from the district court and yet not be helpful to a
district court when it decides whether to allow an interlocutory
appeal from bankruptcy court.

The bankruptcy judge, who is the

3

judicial officer most familiar with the case, is in the best
position to evaluate whether an immediate appeal will materially
advance the ultimate termination of the litigation.

Moreover,

the bankruptcy judge is fully capable of determining whether the
decision

for

which

immediate

appeal

is

sought

involves

a

controlling question of law and whether there is a substantial
difference of opinion as to that question, particularly given
the fact that the bankruptcy judge presumably studied the issue
thoroughly before rendering the interlocutory decision.
Congress

enacted

district

judge

§

1292(b),

was

in

it

the

certainly

best

decided

position

to

When

that

make

the

these

determinations initially, and thus it codified the certificate
requirement as a condition precedent for an interlocutory appeal
from

the

district

court.

This

Court

finds

that

bankruptcy

judges are similarly situated when parties seek an interlocutory
appeal of their decisions.

While the certificate requirement

may not be a statutory condition precedent for interlocutory
appeals

from

bankruptcy

court

to

district

court,

a

district

judge, as a matter of discretion, should be able to consider the
presence or absence of a certificate when deciding whether to
permit an interlocutory appeal.
The bankruptcy judge whose order Plaintiff seeks to appeal
in the present action has not stated in writing that his order
involved a controlling question of law as to which there is

4

substantial
immediate
ultimate

ground

appeal

for

from

termination

difference
his

of

order

the

of

may

opinion

and

materially

litigation.

that

advance

Finding

that

an
the
the

bankruptcy judge’s determination that the § 1292(b) factors are
present is essential to this Court’s decision as to whether to
allow the appeal here, the Court denies the request for leave to
appeal.

Since Plaintiff may not have anticipated the importance

that this Court would place on a §1292(b) certificate, Plaintiff
shall have 14 days from today’s order to seek a certificate from
the

bankruptcy

judge.

If

one

is

obtained,

the

Court

will

reconsider its denial of leave to appeal.1

IT IS SO ORDERED, this 3rd day of January, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

1

The Court does not hold that the “1292(b) certificate” requirement is
jurisdictional for interlocutory appeals from the bankruptcy court,
but the Court finds that one is necessary for the district court to be
fully informed as it determines whether to allow an interlocutory
appeal.

5