WALTZ et al v. REDMON et al

Filing 20

ENTRY Discussing Selected Matters - 18 Motion for Reconsideration is DENIED. 17 Motion for Leave to Appeal is DENIED. See Entry for details. Signed by Judge Sarah Evans Barker on 11/3/2011. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

IN RE: VERNON D. WALTZ,

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_____________________________________ )
SIDNEY H. REDMON,
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Appellant,
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vs.
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VERNON D. WALTZ,
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Appellee.
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No. 02-94244-BHL-7

4:11-cv-0038-SEB-TAB

Entry Discussing Selected Matters
I.
This bankruptcy appeal was dismissed for lack of jurisdiction because no final
judgment has been issued by the bankruptcy court nor has leave to pursue an
interlocutory appeal been obtained. See 28 U.S.C. ' 158(a). Because the court lacked
jurisdiction, the appeal was properly dismissed. There was no alternative to this
disposition. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998)
("'Jurisdiction is power to declare the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and dismissing the cause.'")(quoting
Ex parte McCardle, 7 Wall 506, 514, 19 L.Ed. 264 (1868)).
Because the court was compelled to dismiss the appeal as described above, the
motion to reconsider the disposition [18] is denied.
II.
The appellant Redmon now seeks leave to pursue an interlocutory appeal. He
wants to challenge the non-final order in a bankruptcy adversary proceeding in which the
bankruptcy court denied his motion to amend his complaint and/or his motion to
reconsider that denial. Redmon argues that the bankruptcy court should have allowed
him to add claims alleging that his debt should have been deemed non-dischargeable
under 11 U.S.C. § 523(a).

The United States District Courts have jurisdiction to hear appeals from “final
judgments, orders, and decrees” of the bankruptcy court pursuant to 28 U.S.C. §
158(a)(1), as well as certain interlocutory orders described in 28 U.S.C. § 158(a)(2). A
party may also, “with leave of the court,” appeal from other interlocutory orders and
decrees pursuant to 28 U.S.C. § 158(a)(3). Neither § 158 nor the Federal Rules of
Bankruptcy Procedure provide criteria to determine whether to grant leave to file an
interlocutory appeal. Courts faced with this question have applied 28 U.S.C. §1292(b),
which sets forth the requirements for interlocutory appeals from district courts to the
courts of appeals. See In re Sandenhill, Inc., 304 B.R. 692, 694 (E.D.Pa.2004).
“The decision to grant or deny leave to appeal a bankruptcy court’s interlocutory
order is committed to the district court’s discretion.” In re O’Connor, 258 F.3d 392,
399-400 (5th Cir. 2001). See also In re UAL Corp., 411 F.3d 818, 821 (7th Cir. 2005)
(district court has discretion under 28 U.S.C. § 158(a) to entertain an interlocutory
appeal). “Because interlocutory appeals interfere with the overriding goal of the
bankruptcy system, expeditious resolution of pressing economic difficulties, they are not
favored.” Sims v. Sunnyside Land, LLC, 425 B.R. 284, 290 (W.D.La. 2010) (internal
quotation omitted).
There are four statutory criteria to guide the court in determining whether to grant
an interlocutory appeal: “there must be a question of law, it must be controlling, it must be
contestable, and its resolution must promise to speed up the litigation.” Ahrenholz v.
Board of Trustees of University of Ill., 219 F.3d 674, 675 (7th Cir. 2000) (emphasis in
original). All of the criteria must be satisfied to certify an interlocutory appeal. Id. at 676. A
“‘question of law’ as used in section 1292(b) has reference to a question of the meaning of
a statutory or constitutional provision, regulation, or common law doctrine….” Id. An
interlocutory appeal should be permitted only when the contested issue is “a pure
question of law, something the court of appeals could decide quickly and cleanly without
having to study the record….” Id. at 677.
The decision of the bankruptcy court challenged by Redmon is far from being a
“pure question of law.” Redmon does not seek clarification of the meaning of a statute or
regulation or other law. Rather, he challenges the exercise of the bankruptcy court’s
discretion in denying leave to amend the complaint. Johnson v. Cyprus Hill, 641 F.3d 867,
871-72 (7th Cir. 2011) (“[C]ourts have broad discretion to deny leave to amend….”). The
appellant’s motion for leave to appeal fails to satisfy even the first of the criteria discussed
above. He does not challenge a question of law, much less a controlling question of law.
Under these circumstances, the appellant’s motion for leave to pursue an interlocutory
appeal [17] must be denied.
IT IS SO ORDERED.
11/03/2011
Date: __________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Wilmer E. Goering II
ALCORN GOERING & SAGE
[e-mail]
R. Patrick Magrath
ALCORN GOERING & SAGE
[e-mail]
Sidney H. Redmon
1022 Schumard Avenue
Cincinnati, OH 45215