Holmes-Diltz v. Sosne et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff-Appellees' Motion to Dismiss for Lack of Jurisdiction (ECF No. 3 ) is GRANTED. IT IS FURTHER ORDERED that Appellant's Notice of Appeal and Statement of Election (ECF No. 1 ) and Motion for Stay Pending Appeal (ECF No. 6 ) are DENIED as MOOT. A separate Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 8/9/2018. (AFC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
IN RE: DARRYL LAMAR ALLEN,
BEYERL Y HOLMES-DILTZ,
DAVID A. SOSNE, et al.,
U.S. District Court
No. 4:18CV210 RLW
Bankruptcy Case No. 15-45264-705
Adversary Case No. 16-04153-659
MEMORANDUM AND ORDER
This matter is before the Court on Appellant Beverly Holmes-Diltz's Notice of Appeal
and Statement of Election and brief in support (ECF Nos. 1, 7), appealing from an Order entered
in an underlying bankruptcy adversary proceeding which denied her motion for a jury trial.
(Adv. No. 16-04153-659, ECF Nos. 105, 110) Appellees have filed a brief in opposition, and
Appellant Beverly Holmes-Diltz ("Holmes-Diltz") has filed a reply brief. Also pending are
Appellees' Motion to Dismiss for Lack of Jurisdiction and Appellant's Motion for Stay Pending
Appeal. (ECF Nos. 3, 6) Appellant Holmes-Diltz filed a response to the motion to dismiss,
asserting that the Court has jurisdiction under the All Writs Statute, 28 U.S.C. § 165l(a). Upon
review of the pending motions, the Court will dismiss the appeal for lack of jurisdiction.
I. Procedural Background
Plaintiff-Appellee Darryl Lamar Allen ("Debtor"), the debtor in the underlying
bankruptcy action, filed for relief under Chapter 7 of the United States Bankruptcy Code on July
15, 2015. Plaintiff-Appellee David A. Sosne ("Trustee") is the duly appointed Chapter 7
Trustee. On November 1, 2016, Appellees filed an Adversary Complaint against Appellant
Holmes-Diltz, and Defendants Critique Services LLC and Renee Mayweather seeking damages
related to Defendants' representation of the Debtor in the preparation and filing of his
bankruptcy petition. On August 4, 2017, Appellant Holmes-Diltz filed a Motion for Withdrawal
of Reference and made a demand for a jury trial, which motion was transferred to the United
States District Court for the Eastern District of Missouri, Case No. 4: 17CV2216 RL W. On
October 23, 2017, the Court denied Appellant's motion. Appellant did not appeal that Order.
In the adversary proceeding, Appellant filed a Motion for Ruling under Rule 7016(B)(2)
that the Court Cannot Enter a Final Order or Judgment in this Case on November 14, 2017. On
November 20, 2017, Appellant filed a Motion for Continuance of Trial and Scheduling a Jury
Trial, again seeking a trial by jury. On January 9, 2018, the Bankruptcy Court issued Orders
denying said motions. (Adv. No. 16-04153-659, ECF Nos. 105, 111) On January 19, 2018,
Appellant Holmes-Diltz filed a Notice of Appeal and Statement of Election, along with a Motion
to Stay Pending Appeal. The Bankruptcy Court transferred the appeal to the U.S. District Court
and denied the motion to stay. A hearing was held on the adversary bankruptcy case on March
27, 2018 and taken under submission. No final order has been issued.
In her appeal, Appellant Holmes-Diltz argues that the Bankruptcy Court erred in denying
her constitutional right to a jury trial. Appellant also argues that this Court erroneously denied
her prior motion to withdraw the reference and seeks reversal of that Order. In both their Motion
to Dismiss and their Brief, Appellees assert that the Court lacks jurisdiction over Holmes-Diltz's
appeal because Appellant is not appealing a final order of the Bankruptcy Court, and she failed
to seek leave to appeal an interlocutory order as required by 28 U.S.C. § 158(a)(3) and Rule
8004(a)(2) of the Federal Rules of Bankruptcy Procedure.
Under 28 U.S.C. § 158, "[t]he district courts of the United States shall have jurisdiction
to hear appeals from final judgments, orders, and decrees ... and with leave of the court, from
other interlocutory orders and decrees." 28 U.S.C. § 158(a)(l) & (3). An order denying a
motion for a jury trial is an interlocutory order, requiring an appellant to file a motion for leave
to appeal the bankruptcy order under§ 158(a)(3). In re Popkin & Stern, 105 F.3d 1248, 1249
(8th Cir. 1997).
Here, Holmes-Diltz failed to file a motion for leave to appeal an interlocutory order, and
the Court lacks jurisdiction to hear the appeal. See Fed. R. Bankr. P. 8004(a)(2) ("To appeal
from an interlocutory order or decree of a bankruptcy court under 28 U.S.C. § l 58(a)(3), a party
must file with the bankruptcy clerk a notice of appeal as prescribed by Rule 8003(a). The notice
must ... be accompanied by a motion for leave to appeal prepared in accordance with
subdivision (b)."); Estate ofStorm v. Nw. Iowa Hosp. Corp., 548 F.3d 686, 688 (8th Cir. 2008)
(stating that an appellant's failure to file a motion for leave to appeal an interlocutory order in is
In addition, the Court notes that a trial was held in this matter on March 27, 2018 such
that Appellant's appeal of the order denying a jury trial is now moot. "A district court does not
have jurisdiction over an appeal from an interlocutory bankruptcy court order where the
reviewing court is incapable of providing meaningful relief." In re Reed, No. 4: 16-CV-O 1141AGF, 2017 WL 3838621, at *6 (E.D. Mo. Sept. 1, 2017).
Finally, with respect to Appellant's request for a writ of mandamus, the Court notes that
writs of mandamus are abolished under Rule 81 of the Federal Rules of Civil Procedure. A writ
of mandamus may not be used as a substitute for an appeal, and the Court lacks jurisdiction over
Appellant Holmes-Diltz's appeal. City ofShorewood v. Johnson, 500 F. App'x 556, 557 (8th
Cir. 2013). Thus, the Court will grant Appellees' motion to dismiss and deny the pending
motions as moot.
IT IS HEREBY ORDERED that Plaintiff-Appellees' Motion to Dismiss for Lack of
Jurisdiction (ECF No. 3) is GRANTED.
IT IS FURTHER ORDERED that Appellant's Notice of Appeal and Statement of
Election (ECF No. 1) and Motion for Stay Pending Appeal (ECF No. 6) are DENIED as
MOOT. A separate Order of Dismissal will accompany this Memorandum and Order.
Dated this 9th day of August, 2018.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
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