Blendheim et al v. The Note Holder et al

Filing 20

ORDER granting Appellee's 14 Motion to Dismiss. Clerk directed to close the case. Authorized by U.S. District Judge John C Coughenour. (PM)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ROBERT S. BLENDHEIM, et al.,

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Appellants,
v.

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ORDER GRANTING APPELLEES’
MOTION TO DISMISS APPEAL

THE NOTE HOLDER, et al.,

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CASE NO. C16-1376-JCC

Appellees.

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This matter comes before the Court on Appellees’ motion to dismiss appeal (Dkt.

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No. 14). Having thoroughly considered the parties’ briefing and the relevant record, the Court

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finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained

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herein.

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I.

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BACKGROUND
This case stems from the prior litigation of Appellants Robert and Darlene Blendheim

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(“Blendheims”) in the United States Bankruptcy Court for the Western District of Washington.

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The Blendheims filed a motion for summary judgment to recover attorney fees and costs related

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to their prior bankruptcy litigation. (Dkt. No. 13-2 at 191–213.) The Honorable Marc L. Barreca,

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United States Bankruptcy Judge, granted the motion in part in the memorandum opinion

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regarding debtors’ motion for summary judgment for determination of fees (“Memorandum

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Opinion”). (Dkt. No. 13-2 at 555–79.) Judge Barreca considered nine categories of fee requests
ORDER GRANTING APPELLEES’ MOTION TO
DISMISS APPEAL
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and granted seven requests, denied one request for interest on fee awards, and indicated that he

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would later award fees related to the motion for summary judgment. (Dkt. No. 13-2 at 569–579).

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The Blendheims filed a motion for reconsideration which was denied. (Dkt. No. 1 at 45–46). The

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Blendheims next filed a notice of appeal with this Court. (Dkt. No. 1 at 47–51). Appellees now

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seek to dismiss this appeal. (Dkt. No. 14.)

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II.

DISCUSSION

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A.

Motion to Appeal an Interlocutory Order

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Appellees assert that the Blendheims’ motion to appeal should be dismissed as the

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Memorandum Opinion was interlocutory and not “a final and appealable judgment, order, or

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decree.” (Dkt. No. 14 at 2.) In support, Appellees point to the language in the Memorandum

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Opinion regarding the Blendheims’ motion for summary judgment fees: “[c]ontingent upon

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further briefing and submission of time records, I will award Debtors a portion of their

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reasonable attorneys’ fees and costs related to litigating.” (Dkt. No. 13-2 at 532.) Appellees

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argue that the Memorandum Opinion was not final and therefore any appeal is not appropriate at

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this time. (Dkt. No. 14 at 7.)

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In response, the Blendheims assert that the Memorandum Opinion was final and point to

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the language that “with entry of this order Debtors will obtain a final judgment” as evidence.

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(Dkt. No. 16 at 2.) The Blendheims insist that the summary judgment fees were clearly awarded

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in the Memorandum Opinion and although the specific amount is to be determined, that merely

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requires the Bankruptcy Court to apply its pre-determined “rubric to a subsequent submission of

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time records.” (Id.)

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A final court decision is usually “one which ends the litigation on the merits and leaves

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nothing for the court to do but execute the judgment.” Budinich v. Becton Dickinson & Co., 486

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U.S. 196, 199 (1988). The fact that there may still be a question remaining after a decision is

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issued “does not prevent finality if its resolution will not alter the order or moot or revise

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decisions embodied in the order.” Id. However, an attorney fees award “does not become final
ORDER GRANTING APPELLEES’ MOTION TO
DISMISS APPEAL
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until the amount of the fee award is determined.” Image Tech. Serv., Inc. v. Eastman Kodak Co.,

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136 F.3d 1354, 1357 (9th Cir. 1998). It is “premature to appeal the fee award until the amount

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[is] determined by the court.” Id. Here, the Memorandum Opinion clearly indicates that the

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amount of the fee award is yet to be determined. Therefore, the Blendheims’ appeal of the

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Memorandum Order is an appeal of an interlocutory order.

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When an appeal is filed on an interlocutory order it must be accompanied by a motion for

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leave to appeal. Fed. R. Bankr. P. 8004(a)(2). In the absence of such a motion, the district court

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may order the appellant to file one or treat the notice of appeal as a motion for leave and grant or

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deny it. Fed. R. Bankr. P. 8004(d). The Blendheims request that the Court treat the notice of

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appeal as a motion for leave and grant the appeal. (Dkt. No. 16 at 3.) Appellees request that the

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Court dismiss the appeal. (Dkt. No. 14 at 10.) As the Bankruptcy Court has yet to resolve the

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issue of attorney fees associated with the motion for summary judgment, this Court will not

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prematurely intervene in the process. The Blendheims’ appeal is DISMISSED as not ripe.

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III.

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CONCLUSION
For the foregoing reasons, Appellees’ motion to dismiss (Dkt. No. 14) is GRANTED.

The Clerk is respectfully directed to CLOSE the case.

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DATED this 2nd day of March, 2017.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER GRANTING APPELLEES’ MOTION TO
DISMISS APPEAL
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