CARR v. HULL et al

Filing 8

ORDER FOR MOTION FOR LEAVE TO APPEAL ORDER denying 1 Motion for Leave to Appeal By JUDGE D. BROCK HORNBY. (jib)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
IN RE: MERIDIAN MEDICAL
SYSTEMS, LLC,
DEBTOR
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KENNETH CARR,
APPELLANT
V.

NATHANIEL R. HULL, Chapter 7
Trustee; JEFFREY CARR AND
ROBERT ALLISON,
APPELLEES

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CHAPTER 11
BK. CASE NO. 15-20640 PGC
ADVERSARY CASE NO. 15-2028

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MISC. NO. 1:17-MC-208-DBH

ORDER FOR MOTION FOR LEAVE TO APPEAL ORDER
This court, sitting in an appellate capacity vis-à-vis the bankruptcy court,
previously denied leave to appeal the bankruptcy court’s interlocutory refusal to
remand a related state lawsuit to state court. Dec. and Order of June 10, 2016
(2:16-cv-38-DBH, ECF No. 17). On July 4, 2017, Kenneth Carr renewed the
motion for remand in the bankruptcy court. The bankruptcy court denied it
once again, referring to both law of the case and the merits of the remand motion.
Mem. of Dec. at 8 & n.9 (ECF No. 1-4 at 29 & n.9).

Carr now seeks an

interlocutory appeal of the second denial. This second motion for leave to appeal
is DENIED.

“In the interests of both consistency and judicial economy . . . litigants
should not ordinarily be allowed to take serial bites at the appellate apple.”
United States v. Connell, 6 F.3d 27, 30 (1st Cir. 1993). I see no reason here to
alter my previous ruling denying interlocutory appeal.

Carr has shown no

change in the controlling legal authority, no new evidence that was not earlier
obtainable,1 nor any blatant error. Instead, he has come up with a new argument
that he could have made, but did not make, originally.2 Even if the previous
ruling is not law of the case in the strict sense,3 those are sound reasons for
denying this second bite at the apple.
The bankruptcy court’s decision also does not satisfy the collateral order
doctrine for immediate interlocutory review, because the remand refusal is still

He is unhappy with delay that has since occurred in the bankruptcy court. Without resolving
conflicting versions of responsibility for any delay, I conclude that is not “new evidence” for
present purposes.
2 For the first time, he has made a bankruptcy court subject matter jurisdiction argument. See
Mot. at 6, ¶ 20 (ECF No. 1). That argument in turn is based on certain factual determinations,
id. at 6, ¶ 20 and 7, ¶ 23, that the bankruptcy court resolved against him. Mem. of Dec. at 13
(ECF No. 1-4 at 34). Subject matter jurisdiction is always a concern, but the resolution of this
fact-dependent issue that he failed to raise earlier does not amount to blatant error that requires
interlocutory review, and it remains subject to review at the end of the case.
3 It certainly is not subject to the mandate rule, because my previous denial of leave to appeal
did not decide any issue before the bankruptcy court. See Wright & Miller, 18B Fed. Prac. &
Proc. Juris. § 4478.5 & n.10 (2d ed.). If the previous denial of interlocutory appeal were law of
the case in the strict sense for either the bankruptcy court or this court as to our respective
decisions, Carr would have to show “exceptional circumstances—a threshold which, in turn,
demands that the proponent accomplish one of three things: show that controlling legal authority
has changed dramatically; proffer significant new evidence, not earlier obtainable in the exercise
of due diligence; or convince the court that a blatant error in the prior decision will, if
uncorrected, result in a serious injustice.” Negron-Almeda v. Santiago, 579 F.3d 45, 51-52 (1st
Cir. 2009) (quoting United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)). As I explain in text,
he has failed to do so. In any event, I conclude that the issue here is not law of the case in that
strict sense, but more the “presumption against reconsideration,” a discretionary matter. See
Wright & Miller, 18B Fed. Prac. & Proc. Juris. § 4478.1 (2d ed.). He has not overcome the
presumption.
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subject to review at the end of the case. See In re Jackson Brook Inst., Inc., 227
B.R. 569 (D. Me. 1998).
Accordingly, the motion for leave to appeal is DENIED.
SO ORDERED.
DATED THIS 3RD DAY OF OCTOBER, 2017
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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