Romanzi

Filing 8

OPINION AND ORDER denying 1 Application for leave to appeal and remanding case back to the Bankruptcy Court for the Eastern District of Michigan. Signed by District Judge Gershwin A. Drain. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN RE CRAIG S. ROMANZI,
Debtor.
Case No. 17-cv-12303
KENNETH A. NATHAN
Appellant,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

V.

UNITED STATES MAGISTRATE JUDGE
R. STEVEN WHALEN

FIEGER & FIEGER P.C., ET AL.,
Appellees.
/

OPINION AND ORDER DENYING PLAINTIFF-APPELLANT’S APPLICATION FOR
LEAVE TO APPEAL [1]
I. INTRODUCTION
This case stems from an involuntary bankruptcy proceeding filed against
Craig S. Romanzi (“Debtor”) on March 16, 2016. The bankruptcy trustee of
Romanzi, Kenneth A. Nathan (“Plaintiff-Appellant” or “Trustee”) seeks recovery
of an attorney fee that he alleges Fieger & Fieger, P.C. and Geoffrey N. Fieger (
“Defendants-Appellees”) wrongfully retained. Plaintiff-Appellant claims the
attorney fee is an asset of the bankruptcy estate.
Plaintiff-Appellant filed a notice of appeal with the Bankruptcy Court on
July 13, 2017. Dkt. No. 1, p. 1 (Pg. ID 1). Plaintiff-Appellant’s appeal concerns the

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Bankruptcy Court’s June 29, 2017 order denying Plaintiff-Appellant’s Renewed
Motion for Summary Judgment.1
As a preliminary matter, the Court must rule on Plaintiff-Appellant’s Motion
for Leave to Appeal the Bankruptcy Court’s interlocutory order. Dkt. No. 1, pp. 7–
34 (Pg. ID 7–34). Upon review of the pleadings, the Court finds that oral argument
will not aid in the disposition of this matter. Accordingly, the Court will decide the
matter on the submitted brief. See E.D. Mich. L.R. 7.1(f)(2). For the reasons stated
below, the Court DENIES Plaintiff-Appellant’s Motion for Leave to Appeal [1],
and DISMISSES and REMANDS these proceedings to the United States
Bankruptcy Court for the Eastern District of Michigan.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Court previously recited the facts pertinent to this case in the several
other appeals brought by parties in this bankruptcy proceeding. See In re Romanzi,
No. 16-CV-13986, 2017 WL 395289, at *1–2 (E.D. Mich. Jan. 30, 2017),
reconsideration denied, No. 16-CV-13986, 2017 WL 1130091 (E.D. Mich. Mar.
27, 2017). For the sake of brevity, the Court will not repeat them again here.
III. LEGAL STANDARD
The jurisdiction of a district court to hear appeals from bankruptcy courts is
conferred by 28 U.S.C. § 158(a), which provides:
1

The Court is unable to cite to the page of the Bankruptcy Court’s order
because no exhibits were attached to the application for leave to appeal.
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(a) The district courts of the United States shall have jurisdiction to
hear appeals
(1) from final judgments, orders, and decrees;
(2) from interlocutory orders and decrees issued under section
1121(d) of title 11 increasing or reducing the time periods
referred to in section 1121 of such title; and
(3) with leave of the court, from other interlocutory orders and
decrees[.]
28 U.S.C. § 158(a). Plaintiff-Appellant acknowledges that the present appeal arises
from an interlocutory order, requiring leave of court for jurisdiction in the district
court. See 28 U.S.C. § 158(a)(3); Dkt. No. 1, p. 14 (Pg. ID 14).
IV. DISCUSSION
A. The Court Declines to Exercise Jurisdiction Under 28 U.S.C. § 158(a)(3)
Under 28 U.S.C. § 1292(b), a district court may hear an interlocutory appeal
if “(1) the order involves a controlling question of law; (2) a substantial ground for
difference of opinion exists regarding the correctness of the decision; and (3) an
immediate appeal may materially advance the ultimate termination of the
litigation.” In re A.P. Liquidating Co., 350 B.R. 752, 755 (E.D. Mich. 2006)
(Hood, J.) (quoting West Tenn. Chapter of Associated Builders & Contractors, Inc.
v. City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002)). “Because interlocutory
appeals contravene the judicial policy opposing piecemeal litigation and the
disadvantages of delay and disruption associated with it, review under § 1292(b)

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should be sparingly granted and then only in exceptional cases.” In re Hayes, 453
B.R. 270, 274–75 (E.D. Mich. 2011) (internal quotation marks and citations
omitted).
After reviewing the pleadings in this appeal and the summary judgment
hearing transcript attached to Plaintiff-Appellant’s reply brief, see Dkt. No. 5-1, it
is clear that the Bankruptcy Court’s order did not involve a controlling issue of
law. Similarly, the Court finds from the bankruptcy court transcript that there is not
a substantial ground for a difference of opinion as to the motion for summary
judgment. As the bankruptcy court correctly noted, there are clearly issues of fact
regarding the relevant circumstances in this case, particularly because no formal
discovery has yet commenced. See Dkt. No. 5-1. Such issues of material fact
prevent a court from granting summary judgment. See FED. R. CIV. P. 56; Cehrs v.
Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). This is
because the court must view the facts, and draw reasonable inferences from those
facts, in the light most favorable to the non-moving parties, Defendants-Appellees.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Further, the decision to grant Defendants-Appellants summary judgment on
Counts V and VII is not one upon which there could be a substantial ground for
difference of opinion, based on existing law. See Dkt. No. 5-1, pp. 24–31 (Pg. ID
337–44); Dkt. No. 5-1, pp. 42–44 (Pg. ID 355–57).

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Finally, although an award of summary judgment on all claims would allow
an earlier conclusion to this litigation, it is not legally permissible under
established precedent on motions for summary judgment. The issues upon which
this appeal is premised, like the prior appeals in this bankruptcy proceeding, are
not exceptional and do not warrant an interlocutory appeal.
V. CONCLUSION
Accordingly, based on the above, the Court DENIES Plaintiff-Appellant’s
Motion for Leave to Appeal [1] the Bankruptcy Court’s interlocutory order. This
case is DISMISSED and REMANDED to the United States Bankruptcy Court for
the Eastern District of Michigan.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this opinion and order to
counsel of record herein and to the Clerk of the United States Bankruptcy Court for
the Eastern District of Michigan.
Dated:

August 15, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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