Waldron v. Huber, et al

Filing 8

ORDER denying 4 Motion to Dismiss by Judge Benjamin H. Settle. (MGC)

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1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 2 3 4 5 In Re:, CASE NO. C14-5083BHS DONALD G. HUBER, 6 Debtor. ORDER DENYING APPELLEE’S MOTION TO DIMISS 7 MARK D. WALDRON, Trustee for the 8 estate of Donald G. Huber, Plaintiff, 9 v. 10 11 DONALD G. HUBER, et al., Defendants. 12 13 This matter comes before the Court on Appellee/Trustee Mark D. Waldron’s 14 (“Appellee”) motion to dismiss appeal as untimely (Dkt. 4). The Court has considered the 15 pleadings filed in support of and in opposition to the motion and the remainder of the file 16 and hereby denies the motion for the reasons stated herein. I. PROCEDURAL HISTORY 17 18 On February 10, 2011, Debtor Donald Huber filed a Chapter 11 voluntary petition. 19 Bankruptcy Petition No. 11-41013-PBS, Western District of Washington Bankruptcy 20 Court, Dkt. 1. On May 8, 2012, an adversarial proceeding was initiated by Mark 21 Waldron, trustee for the estate of Mr. Huber (“Trustee”). Cause No. 12-04171-PBS, 22 Western District of Washington Bankruptcy Court, Dkt. 1 (“Adv. Pro.”). ORDER - 1 1 On February 21, 2013, Defendants Constance Dreyer and Gary Dreyer 2 (“Dreyers”) filed a motion for summary judgment on the issue of whether the Trustee 3 would acquire only an economic interest in certain LLC’s instead of a controlling interest 4 in those LLC’s. Id., Dkt. 111. On November 25, 2013, the Honorable Paul B. Snyder, 5 United States Bankruptcy Judge, denied the Dreyers’ motion concluding that the “Trustee 6 succeeded to all of the Debtor’s interests in [the LLC’s], including management and 7 voting rights . . . .” Id., Dkt. 183 at 11. 8 On December 13, 2013, the Trustee filed a motion for summary judgment “as to 9 the issue of control and voting rights in [the LLCs].” Id., Dkt. 185 at 1. The Trustee 10 stated that, “[w]hile the Court’s prior decision and Order denied the Motion for Summary 11 Judgment filed by the Dreyers, the Court did not go so far as to enter an order granting 12 summary judgment to the Trustee on the issue of control.” Id. at 2. On January 9, 2014, 13 Judge Snyder granted the Trustee’s motion. Id., Dkt. 190. 14 On January 21, 2014, the Dreyers appealed the order granting summary judgment 15 to the Trustee. Dkt. 1. On February 10, 2014, the Trustee filed a motion to dismiss the 16 appeal as untimely. Dkt. 4. On February 25, 2014, the Dreyers responded. Dkt. 5. On 17 February 28, 2014, the Trustee replied. Dkt. 7. 18 19 II. DISCUSSION To appeal from a bankruptcy order or judgment a party must timely file a notice of 20 appeal within fourteen days of the entry of the order being appealed. Fed. R. Bank. P. 21 8002(a). “The failure to timely file a notice of appeal is a jurisdictional defect barring 22 ORDER - 2 1 appellate review.” Wiersma v. Bank of West (In re Wiersma), 483 F.3d 933, 938 (9th Cir. 2 2007). 3 In this case, the Trustee’s motion is frivolous and would essentially turn a shield 4 of flexible finality rules into a sword of time barring appeals. The Trustee argues that 5 Judge Snyder’s denial of the Dreyers’ motion for summary judgment “clearly resolved all 6 pending issues between” the Dreyers and the Trustee. Dkt. 7 at 2. The Trustee, however, 7 fails to recognize that there is a fundamental difference between denying requested relief 8 and granting relief. When Judge Snyder entered the order granting the Trustee’s motion 9 for summary judgment, the Dreyers’ substantive rights were determined. That order 10 started the clock for this appeal. Holding that Judge Snyder’s order denying summary 11 judgment started the clock for an appeal would set forth an illogical and impractical rule. 12 Therefore, the Court denies the Trustee’s motion. 13 14 III. ORDER Therefore, it is hereby ORDERED that the Trustee’s motion to dismiss (Dkt. 4) is 15 DENIED. 16 Dated this 25th day of March, 2014. 17 A 18 19 BENJAMIN H. SETTLE United States District Judge 20 21 22 ORDER - 3

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