Davis v. Citifinancial Auto Corp. , 193 Fed. Appx. 736 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 14, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
GILBERT D E W AYNE D AVIS,
Petitioner-A ppellant,
v. No. 05-1522
(D.C. No. 05-CV-1867-W YD-BNB)
CITIFINA NC IAL A UTO (D . Colo.)
CORPO RATION, formerly known as
Arcadia Financial Ltd.; CH ASE
HOM E FINAN CE LLC,
Respondents-Appellees.
OR D ER AND JUDGM ENT *
Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.
Petitioner Gilbert De Wayne Davis appeals from an order of the district
court dismissing his petition for mandamus and/or prohibition and denying his
motion for a temporary restraining order. W e affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Background
M r. Davis commenced his suit in district court on September 26, 2005 by
filing a petition captioned “28 U.S.C. § 1361, Fed. R. Civ. P. Rule 81 Petition for
a W rit of M andamus or Prohibition Directed to the United States Bankruptcy
Court for the District of Colorado.” R., Doc. 1 at 1. The petition alleged that on
June 2, 2005, M r. D avis sought relief under Chapter 7 of the Bankruptcy Code.
On July 14, 2005, the bankruptcy judge entered an order granting respondent
Chase Home Finance LLC’s motion for relief from the automatic stay. Then on
August 24, 2005, the bankruptcy judge entered an order granting respondent
Citifinancial Auto Corporation’s motion for relief from the automatic stay.
M r. Davis’ district court petition sought an order vacating both of the orders for
relief from the automatic stay, and his motion for a temporary restraining order
(filed contemporaneously) sought an order enjoining enforcement of those orders.
The district court referred the matter to a magistrate judge, who
recommended that the motion for a temporary restraining order be denied, and
that the petition be dismissed for lack of subject matter jurisdiction. After
receiving M r. D avis’ objection, the district court reviewed the matter de novo,
accepted the recommendation, entered an order denying the motion for a
temporary restraining order, and dismissed the petition for lack of subject matter
jurisdiction. This appeal followed.
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Discussion
“W e review the district court’s dismissal for lack of subject matter
jurisdiction de novo.” U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir.
1999).
The record reveals that M r. Davis filed an appeal from the bankruptcy
judge’s July 14, 2005 order with the Bankruptcy Appellate Panel (BAP) on
August 9, 2005. On August 24, 2005, BAP dismissed the appeal as untimely.
Any appeal of BAP’s decision denying the appeal as untimely belonged in this
court – not the district court. 28 U.S.C. § 158(c)(2). Therefore, to the extent that
M r. Davis’ petition is an attempted appeal from the bankruptcy judge’s July 14
order, the district court lacked jurisdiction.
As to the August 24, 2005 order of the bankruptcy judge, M r. Davis never
appealed that order. W hile such an appeal may lie in the district court, any such
notice of appeal must be filed within ten days of the entry of the judgment, order,
or decree appealed. Fed. R. Bankr. P. 8002(a). Even if M r. Davis’ September 25,
2005 petition is construed as a notice of appeal, it was untimely. Again, to the
extent that M r. Davis’ petition is an attempted appeal of the bankruptcy judge’s
August 24 order, the district court lacked jurisdiction.
Alternatively, construing M r. Davis’ petition as seeking the extraordinary
relief of mandamus and/or prohibition, it was also properly dismissed. Our
consideration of this claim begins and ends w ith the proposition that “the party
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seeking issuance of the writ must have no other adequate means to attain the
relief he desires.” Kaiser Steel Corp. v. Frates (In re Kaiser Steel Corp.),
911 F.2d 380, 386 (10th Cir. 1990) (quotation omitted). The remedy of appeal
was available to M r. Davis, and therefore, the district court correctly found that
a writ was inappropriate.
For the reasons stated in the magistrate judge’s recommendation and the
district court’s order, the judgment is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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