Moellenhoff et al v. Hogan
MEMORANDUM AND ORDER ; IT IS HEREBY ORDERED that the motion of appellant Evelyn Hogan to dismiss appeal for lack of jurisdiction [Doc. # 3 ] is granted. Signed by District Judge Carol E. Jackson on 10/17/2012; (DJO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
HERMAN DENNIS MOELLENHOFF
HERMAN DENNIS MOELLENHOFF
Case No. 4:12-CV-1148 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on appeal from an order of the United States
Bankruptcy Court denying the motion of appellant and debtor Herman Dennis
Moellenhoff to dismiss the adversary proceeding. Presently before the Court is the
motion of appellee and trustee Evelyn Hogan, to dismiss the appeal for lack of
jurisdiction. The issues are fully briefed.
Hogan filed a Complaint for Determination of Dischargeability under 11 U.S.C.
§ 523(a)(2)(A) and/or 11 U.S.C. § 523(a)(2)(B), in connection with Moellenhoff’s
Chapter 7 Bankruptcy Proceeding. Hogan filed the adversary proceeding individually
and in her capacity as trustee of the Evelyn M. Hogan Trust. In response, Moellenhoff
filed a motion to dismiss the adversary proceeding for failure to state a claim, alleging
that Hogan was not a real party in interest under Rule 17 of the Federal Rules of Civil
The bankruptcy court denied Moellenhoff’s motion to dismiss and directed him
to answer or respond to the complaint. Moellenhoff subsequently filed a motion for stay
of proceedings in the bankruptcy court so that he could proceed with an appeal in the
district court. The motion to stay was denied and Moellenhoff appealed. In response
to the appeal, Hogan argues that the denial of the motion to dismiss was not a “final
order” from which an appeal will lie as a matter of right under 28 U.S.C. § 158(a)(1).
District courts have jurisdiction to hear bankruptcy appeals when a bankruptcy
court has issued a final judgment, order or decree or if the district court, in its
discretion, grants an interlocutory appeal. 28 U.S.C. § 158(a)(1), (a)(3).
“In the Eighth Circuit motions to dismiss can only be final orders if: (1) the order
leaves the bankruptcy court nothing to do save execute the order; (2) a delay in
obtaining review would prevent the aggrieved party from obtaining effective relief; or
(3) a later reversal on that issue would require recommencement of the entire
proceeding.” Coleman Enters. v. Qai, 275 B.R. 533, 535 (8th Cir. BAP 2002). “The
denial of a motion to dismiss does not remove the bankruptcy court from further
proceedings, does not prevent the losing party from obtaining review at a later time,
and would not result in recommencement of the entire proceeding in the event of a later
reversal. Thus such an order is interlocutory[.]” Id.
Here, the bankruptcy court’s ruling on the motion to dismiss did not end the
litigation as it does not prevent Moellenhoff from obtaining effective relief. Moellenhoff
will have the opportunity to present his defenses to Hogan’s claims, and a later reversal
would not require relitigation of the entire proceeding. Accordingly, the Court finds that
the order at issue here is not final, and thus, not appealable as a matter of right pursuant
to 28 U.S.C. 158(a)(1).
The Court also declines to grant permission to appeal pursuant to 28 U.S.C. §
158(a)(3). “Ordinarily, a party seeking leave of the court to challenge an interlocutory
order must file a motion for leave to appeal[,]” but a district court may construe a notice
of appeal as a motion for leave to appeal. In re Machinery, Inc., 275 B.R. 303, 306 (8th
Cir. BAP 2002). Although Moellenhoff did not file a motion for leave to appeal, the Court
will construe his notice of appeal as such.
When deciding whether to grant a motion for leave to appeal, a court applies the
standards found in 28 U.S.C. § 1292(b).” Id. Section 1292(b) instructs that the question
involved be a controlling question of law as to which there exists a substantial ground for
difference of opinion respecting the correctness of the bankruptcy court’s decision and
a finding that an immediate appeal would materially advance the ultimate termination
of the litigation. 27 U.S.C. 1292(b). “‘Leave to appeal from interlocutory orders should
be granted only in exceptional circumstances because to do otherwise would contravene
the well-established judicial policy of discouraging interlocutory appeals and avoiding the
delay and disruption which results from piecemeal litigation.’” In re Machinery, Inc., 275
B.R. at 306 (citing Abel v. Shugrue, 179 B.R. 24, 28 (S.D.N.Y. 1995); see also Aetna Life
Ins. Co. v. Leimer, 724 F.2d 744, 744 (8th Cir. 1894) (“In the Eighth Circuit, an
interlocutory appeal from an order of the bankruptcy court will be granted only if the
order presents important questions of law or extraordinary circumstances.”).
Here, Moellenhoff has failed to satisfy the standards set forth in 28 U.S.C. §
1292(b). The question of whether Hogan is a real party in interest in her individual
capacity, as required under Rule 17 of the Federal Rules of Civil Procedure, would not
materially advance the ultimate determination of the litigation. Hogan filed both as an
individual and as a trustee of the Evelyn M. Hogan Trust. Even if Hogan is not a real
party in interest in her individual capacity, the case would still proceed with Hogan in her
capacity as trustee. Further, the Missouri Rules of Civil Procedure permit an assignment
of a judgment by a writing acknowledged by the assignor and can be for the use of the
assignee. See Mo. R. Civ. P. 17.12(a), (b). As such, a judgment issued to Hogan in her
individual capacity could be assigned to Hogan in her trustee capacity.
Because the bankruptcy court’s order denying Moellenhoff’s motion to dismiss
was not a final appealable order and does not meet the requirements necessary to qualify
as an interlocutory order, this Court lacks jurisdiction to review the merits.
IT IS HEREBY ORDERED that the motion of appellant Evelyn Hogan to dismiss
appeal for lack of jurisdiction [Doc. #3] is granted.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 17th day of October, 2012.
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