SOUTH STREET MORRISTOWN, LLC v. SOUTH & HEADLEY ASSOCIATES, LTD.

Filing 14

MEMORANDUM ORDER denying 11 S&H's Motion to Dismiss for Lack of Jurisdiction; S&H shall file any opposition to South Street's appeal within 14 days of the date of this Order; South Street may file a reply brief within 14 days of service of Appellee's brief. Signed by Judge Michael A. Shipp on 4/13/2015. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

In re SOUTH & HEADLEY ASSOCIATES,
LTD.,

Bankruptcy Action No. 14-28225 (MBK)

Debtor,

SOUTH STREET MORRISTOWN LLC,

ON APPEAL FROM THE
BANKRUPTCY COURT OF THE
DISTRICT OF NEW JERSEY

Appellant,

Civil Action No. 14-7578 (MAS)
v.
SOUTH
LTD.,

&

HEADLEY

ASSOCIATES,

MEMORANDUM ORDER

Appellee.

This matter comes before the Court upon Appellee South & Headley Associates, Ltd.' s
("S&H" or "Debtor") motion to dismiss the bankruptcy appeal for lack of jurisdiction pursuant to
28 U.S.C. § 158(a). (ECF No. 11.) Appellant South Street Morristown LLC ("South Street")
opposed the motion. (ECF No. 13.) The Court has carefully considered the parties' submissions
and decided the matter without oral argument pursuant to Local Civil Rule 78.1.
South Street is appealing an order entered by the bankruptcy court on November 20, 2014,
denying its motion to dismiss the Debtor's bankruptcy proceeding "for cause" pursuant to 11
U.S.C. §§ 1112(b) and 105(a) (the "Bankruptcy Order"). (ECF No. 1.) In support of its motion
to dismiss South Street's appeal, S&H concedes that under Third Circuit precedent the denial of a
motion to dismiss is a "final" appealable order under 28 U.S.C. § 158(a). See In re Brown, 916
F.2d 120, 123-24 (3d Cir. 1990).

Instead, S&H argues that this Court should consider the

concurring opinion of the Honorable Kent A. Jordan, U.S.C.J. in Jn re American Capital
Equipment, LLC, which called into question Jn re Brown. (S&H's Br. 5-7, ECF No. 11-1 (citing

296 F. App'x 270, 275 (3d Cir 2008) (Jordan, J., concurring)).) S&H filed the instant motion to
dismiss based on Judge Jordan's concurrence. This Court, however, is bound by Third Circuit
precedent, and the holding in In re Brown is dispositive of S&H' s motion to dismiss. Therefore,
this Court has jurisdiction over South Street's appeal of the Bankruptcy Order denying a motion
to dismiss under 28 U.S.C. § 158(a). See, e.g., In re Brown, 916 F.2d at 123-24; In re Am. Capital
Equip., LLC, 296 F. App'x at 273.

S&H alternatively requests that "this Court exercise its discretion and invoke the process
under 28 U.S.C. § 1292(b) so that the matter can be brought to the Third Circuit for an en bane
review of Brown." (PL 's Moving Br. 9-10, ECF No. 11-1.) To obtain certification under 28 U.S.C.
§ 1292(b) "a movant must show that there is ( 1) a controlling question of law, (2) as to which there
is a substantial ground for difference of opinion, and that (3) an immediate appeal may materially
advance the ultimate termination of the litigation." Delalla v. Hanover Ins., No. 09-2340, 2010
WL 186172, at *3 (D.N.J. Jan. 14, 2010) (citing Katz v. Carte Blanche Corp., 496 F.2d 747, 754

(3d Cir. 1974)). "Interlocutory appeal under § 1292(b) is used sparingly in exceptional cases."
Hulmes v. Honda Motor Co., 936 F. Supp. 195, 208 (D.N.J. 1996), aff'd, 141 F.3d 1154 (3d Cir.

1998) (internal quotation marks omitted). "A question is 'controlling' if its incorrect disposition
would require reversal of the final judgment." Id. S&H did not specifically discuss this standard
in its moving papers, nor has it satisfied the standard here where Third Circuit precedent clearly
addresses the controlling question of law. Therefore, S&H' s motion to dismiss the appeal based
on lack of jurisdiction is denied.

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For the reasons set forth above, and other good cause shown,
IT IS on this JJ' aay of April 2015, 0 RD ERED that:
1.

S&H's motion to dismiss the bankruptcy appeal for lack of jurisdiction (ECF No.

11) is DENIED.
2.

S&H shall file any opposition to South Street's appeal, including South Street's

arguments regarding Debtor's lack of authority to defend this appeal, within fourteen (14) days of
the date of this Order.
3.

South Street may file a reply brief within fourteen (14) days after service of

Appellee's brief.

MICHAEL A. S~~
UNITED STATES DISTRICT JUDGE

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