Perry v. Kriegman

Filing 14

ORDER DENYING MOTIONS AND DISMISSING BANKRUPTCY APPEAL FOR LACK OF JURISDICTION; denying ECF Nos. 5 Motion to Stay and 12 Motion for Clarification and Appointment of Counsel. FILE CLOSED. Signed by Judge Rosanna Malouf Peterson. (TR, Case Administrator)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Jan 24, 2019
SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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DAVID PERRY,
NO: 2:18-CV-43-RMP
Creditor,

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v.
BRUCE P. KRIEGMAN,

ORDER DENYING MOTIONS AND
DISMISSING BANKRUPTCY
APPEAL FOR LACK OF
JURISDICTION

Trustee,

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BEFORE THE COURT is a motion to stay the above-captioned bankruptcy

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appeal, ECF No. 5, and a “Request for Clarification and Pro Bono Help,” ECF No.

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12, also styled as a motion. Both documents were filed by Creditor and Appellant

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David Perry, who is proceeding pro se. Trustee Bruce Kriegman, the other party

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named in Mr. Perry’s appeal, see ECF No. 1 at 1, did not respond to Mr. Perry’s

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motions. Having reviewed the docket and the relevant law, the Court is fully

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informed and finds that it lacks jurisdiction to grant Mr. Perry the relief that he

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requests through his motions and his notice of appeal.

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ORDER DENYING MOTIONS AND DISMISSING BANKRUPTCY APPEAL
FOR LACK OF JURISDICTION ~ 1

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Mr. Perry sought to appeal an order by the United States Bankruptcy Court for

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the Eastern District of Washington (“Bankruptcy Court”) denying an emergency

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motion for removal of Trustee Kriegman. ECF No. 1. However, through his motion

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to stay, ECF No. 5, and a “Request [sic] Continuation of Stay,” ECF No. 9, filed

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shortly thereafter, Mr. Perry seeks to stay his appeal while the Bankruptcy Court

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resolves outstanding issues before it. Mr. Perry informs the Court, “[I]f possible,

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without prejudicing our case, we do not wish to perfect the “Emergency Motion for

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Removal of Trustee Kriegman at this time.” ECF No. 9 at 2 (emphasis in original).

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Mr. Perry further relates: “This issue and related issues remain before the U.S.

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Bankruptcy Court as the issues have also been brought to that Court by other

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parties”; and “these issues should be resolved first at that level as that is where they

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arose and where they can be resolved now.” ECF No. 9 at 2.

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A district court has jurisdiction to resolve appeals from final judgments,

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orders, and decrees of a bankruptcy court and may exercise its discretion to hear

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interlocutory appeals where extraordinary circumstances exist. 28 U.S.C. § 158(a);

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see also, e.g., Carey v. Johnson Chua, Case No. 96-4045-TEH, 1996 U.S. Dist.

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LEXIS 18673, at *2 (N.D. Cal. Dec. 3, 1996). A bankruptcy court’s order denying

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removal of the trustee is not a final order. SS Farms, LLC v. Sharp (In re SK Foods,

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L.P.), 676 F.3d 798, 802 (9th Cir. 2012). Therefore, to find that this interlocutory

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order may be appealed, the Court must determine that resolving Appellant’s

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challenge to the order will avoid wasted litigation or expense or that the ultimate
ORDER DENYING MOTIONS AND DISMISSING BANKRUPTCY APPEAL
FOR LACK OF JURISDICTION ~ 2

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determination of the entire litigation otherwise would be advanced. See In re

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Roderick Timber Co., 185 B.R. 601, 604 (B.A.P. 9th Cir. 1995); Johnson Chua,

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1996 U.S. Dist. LEXIS 18673, at *2. Interlocutory appeals generally are disfavored.

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Johnson Chua, 1996 U.S. Dist. LEXIS 18673, at *2.

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Mr. Perry maintains that it would be best for the litigation to proceed in the

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Bankruptcy Court, and he filed the appeal out of an abundance of caution to preserve

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his opportunity to appeal. ECF No. 5 and 9. However, without any issue that

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Appellant wants this Court to resolve, or any support for the concept that

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interlocutory appeal will advance the ultimate determination of the litigation,

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granting leave for interlocutory review is not warranted. Without a basis for

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interlocutory review, the district court lacks jurisdiction to entertain Mr. Perry’s

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requests for a stay. Thus, the Court concludes that it does not have jurisdiction to

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grant any of the relief sought by Mr. Perry in his notice of appeal or in his motions.

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Accordingly, IT IS HEREBY ORDERED:

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1.

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Creditor and Appellant David Perry’s motion to stay, ECF No. 5, and

motion for clarification and appointment of counsel, ECF No. 12, are DENIED.

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2. This matter is dismissed for lack of subject matter jurisdiction.

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IT IS SO ORDERED. The District Court Clerk is directed to enter this

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Order, provide copies to Mr. Perry and counsel, and close the case.
DATED January 24, 2019.

s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

ORDER DENYING MOTIONS AND DISMISSING BANKRUPTCY APPEAL
FOR LACK OF JURISDICTION ~ 3