Gotcher et al v. Duffie

Filing 3

ORDERED: 1. Ms. Duffie's Motion to Transfer Case #MT-15-1201 to the United States Circuit District Court of Appeals is GRANTED. 2. The appeal in the matter shall be referred to the District Cort of Montana. Signed by Judge Brian Morris on 3/22/2017. (ELL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
In Re

CV 15-34-BU-BMM

MARY KAY DUFFIE,
ORDER on Referral of Case to
Bankruptcy Court

Debtor.
MARY KAY DUFFIE
Appellant,
v.
STEVE GOTCHER AND SHARON
GOTCHER,
Appellees.

28 U.S.C. § 158 (b)(6)(c) provides that:
(1) Subject to subsections (b) and (d)(2), each appeal under subsection (a)
shall be heard by a 3-judge panel of the bankruptcy appellate panel
service established under subsection (b)(1) unless-(A) the appellant elects at the time of filing the appeal; or
(B) any other party elects, not later than 30 days after service of notice of the
appeal; to have such appeal heard by the district court.
The Appellant in this action, Mary Kay Duffie, filed a Notice of Appeal on
June 15, 2015. (Doc. 1-1.) Ms. Duffie filed an Amended Notice of Appeal on July
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6, 2015, allegedly “to cure a paperwork deficiency.” (Doc. 1.) Ms. Duffie filed an
Election to Proceed in the District Court with the Amended Notice of Appeal also
on July 6, 2015. (Doc. 1-3.) Ms. Duffie’s Election to Proceed in the District Court
represented that Ms. Duffie failed to file an election with her original Notice of
Appeal because she was unaware of her inability to apply for the Bankruptcy
Appeals Pro Bono Program if the appeal were to proceed under the Bankruptcy
Appellate Panel.
The Appellees in this matter, Steve and Sharon Gotcher, filed an Objection
to the referral of this case to the District Court of Montana. (Doc. 2.) Appellees
argue that Ms. Duffie’s Election to Proceed in the District Court was untimely.
Appellees specifically argue that Ms. Duffie was required under 28 U.S.C. § 158
(b)(6)(c), to file an Election to Proceed in the District Court with her original
Notice of Appeal.
The Court determines that this matter was properly referred to the District
Court of Montana through Ms. Duffie’s Election to Proceed in the District Court.
Ms. Duffie is a pro se litigant. The Court takes into account Ms. Duffie’s pro se
status and thereby lessens the potential consequences of Ms. Duffie’s failure to
understand the unavailability of the pro bono program at the time she filed her
original Notice of Appeal. The Court further considers that Ms. Duffy filed the

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Election to Proceed in the District Court only approximately three weeks after she
filed the original Notice of Appeal.
Accordingly, IT IS ORDERED:
1. Ms. Duffie’s Motion to Transfer Case # MT-15-1201 to the United States
Ninth Circuit, District Court of Appeals is GRANTED.
2. The appeal in the matter shall be referred to the District Court of
Montana.
DATED this 22nd day of March, 2017.

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