Nancy Fendell Lurie v. Robert J. Blackwell ( 1997 )

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No. 96-2207
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In re: Popkin & Stern, *
*
Debtor. *
________________________
*
Nancy Fendell Lurie, *
* Appeal from the United States
Defendant - Appellant, * District Court for the
* Eastern District of Missouri.
v. *
*
Robert J. Blackwell, *
Liquidating Trustee of the *
Popkin & Stern Liquidating *
Trust, *
*
Plaintiff - Appellee. *
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Submitted: December 10, 1996
Filed: January 31, 1997
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Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.
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BRIGHT, Circuit Judge.
Nancy Lurie appeals the district court's1 dismissal of her
interlocutory appeal from a bankruptcy court order denying Lurie's motion
for a jury trial. The district court dismissed Lurie's appeal for failure
to prosecute. Because the district court's
1
The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.
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order is not a final judgment, we dismiss Lurie's appeal for lack of
jurisdiction.
BACKGROUND
This case arises from a bankruptcy action in which Lurie filed a
motion for a jury trial. The bankruptcy court denied that motion.
Lurie filed an interlocutory appeal with the district court. The
district court granted Lurie leave to appeal the bankruptcy court order
pursuant to 28 U.S.C. § 158(a)(3).2 The district court eventually
dismissed Lurie's appeal with prejudice for failure to prosecute within the
allotted time and for failure to comply with court orders. The district
court then denied Lurie's motion under Fed.R.Civ.P. 59(e) to alter or amend
judgment.
Lurie raises two issues in her appeal to this court. First, she
asserts that the district court erred in dismissing her interlocutory
appeal. Second, Lurie argues that the district court erred in denying her
motion to alter or amend judgment under Rule 59(e).
Lurie originally asserted jurisdiction for this appeal under 28
U.S.C. § 158(d) relating to appeals from final orders of district courts
to appellate courts. After we expressed concerns regarding jurisdiction,
Lurie argued jurisdiction existed under 28
2
That provision confers jurisdiction to district courts over
interlocutory appeals from bankruptcy courts when leave of the
court is granted.
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U.S.C. § 1291 and the collateral order doctrine.3 Appellee contests
jurisdiction.
DISCUSSION
"Although the parties do not discuss appellate jurisdiction in their
briefs, we are nonetheless obliged to consider it." Friedman v. Melp, Ltd.
(In re Melp, Ltd.), 79 F.3d 747 (8th Cir. 1996) (citation omitted).
Lurie's original assertion that we have jurisdiction under 28 U.S.C.
§ 158(d) is incorrect. Section 158 addresses the procedure for appeals
from bankruptcy courts and states in relevant part:
(a) The district courts of the United States shall have
jurisdiction to hear appeals
(1) from final judgments, orders, and decrees;
* * * *
(3) with leave of the court, from other interlocutory
orders and decrees; . . .
* * * *
(d) The courts of appeals shall have jurisdiction of
appeals from all final decisions, judgments, orders, and
decrees entered under subsection (a) . . . of this section.
28 U.S.C. § 158. Accordingly, "[u]nlike the district court, which has
discretion to hear appeals from interlocutory bankruptcy court orders,
§ 158(a), our jurisdiction is limited to `appeals from all final decisions,
judgments, orders, and decrees' of the district
3
The parties were notified of our concerns regarding
jurisdiction by letter and were requested to address this issue
at oral argument. We also allowed the parties to file
supplemental briefing regarding the collateral order doctrine.
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court." Drewes v. St. Paul Bank for Cooperatives (In re Woods Farmers
Coop. Elevator Co.), 983 F.2d 125, 127 (8th Cir. 1993) (quoting 28 U.S.C.
§ 158(d)).
Neither party disputes that the appeal at issue is an interlocutory
one. "For purposes of § 158(d), a determination of the district court is
not `final' unless the underlying order of the bankruptcy court is final."
Flor v. Bot Fin. Corp., 79 F.3d 281, 283 (2d Cir. 1996). An interlocutory
appeal from an order denying a motion to strike a demand for a jury trial
does not confer jurisdiction for the federal court of appeals under
§ 158(d) because neither § 158(d) "nor any other part of § 158 mentions
interlocutory orders entered by the district courts in bankruptcy."
Connecticut Nat. Bank v. Germain, 503 U.S. 250, 252 (1992). The bankruptcy
court order denying Lurie's demand for a jury trial is not a final order.
Accordingly, we lack jurisdiction under § 158(d).
Lurie raised a new basis for jurisdiction, 28 U.S.C. § 1291 and the
collateral order doctrine, during oral argument. According to § 1291, "The
courts of appeals . . . shall have jurisdiction of appeals from all final
decisions of the district courts of the United States . . . ." The appeal
at issue here is interlocutory which, as a general rule, renders § 1291
inapplicable because that provision only applies to final orders. Lurie
asserts, however, that the collateral order doctrine, a "narrow exception
to the requirement that all appeals under § 1291 await final judgment on
the merits," Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374
(1981), applies. We disagree.
The collateral order doctrine is only utilized when a district court
order, at a minimum, meets three criteria: "It must `conclusively
determine the disputed question,' `resolve an important issue completely
separate from the merits of the action,' and `be effectively unreviewable
on appeal from a final judgment.'"
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Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431 (1985) (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). Lurie, however,
does not demonstrate she is precluded from having the issues raised in her
appeal considered by this court after the bankruptcy court enters a final
judgment.
Lurie relies on United States v. Archer-Daniels-Midland Co., 785 F.2d
206 (8th Cir. 1986), where we held jurisdiction existed under the
collateral order doctrine to hear an appeal of a district court order
upholding the government's assignment of the same attorneys who had
participated in grand jury proceedings to a civil anti-trust case against
the identical defendant. Id. at 211. That case is distinguishable from
the case at bar. We noted that the district court order, which addressed
the secrecy of grand jury proceedings, was "effectively unreviewable on
appeal from a final judgment. Any harm to ADM's and Nabisco's interests
which are sought to be protected by keeping grand jury proceedings secret
cannot be undone by a later reversal of the district court order." Id. at
210. Lurie makes no such showing here. Accordingly, the collateral order
doctrine is inapplicable.
As a final thought, we observe that this court, apparently without
effect, frequently expresses its frustration with the numerous bankruptcy
appeals that neglect our jurisdictional limitations. See, e.g., Groves v.
LaBarge, 39 F.3d 212, 214 (8th Cir. 1994) ("Once again, as happens all too
often, bankruptcy practitioners have briefed and argued an appeal to this
court paying no attention to our controlling jurisdictional precedents.");
In re Woods Farmers Coop. Elevator Co., 983 F.2d at 126 ("This appeal
illustrates the jurisdictional mess that results when parties to a complex
bankruptcy proceeding ignore the final order requirement of 28 U.S.C.
§ 158(d)."); Broken Bow Ranch, Inc. v. Farmers Home Admin., 33 F.3d 1005,
1007 (8th Cir. 1994) ("As happens all too often in bankruptcy appeals,
neither party
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addressed [the jurisdiction] issue . . . ."). The lesson here for
litigants is to examine jurisdiction before, not after, appealing.
CONCLUSION
Accordingly, we dismiss the appeal for lack of appellate
jurisdiction. The dismissal is without prejudice. We express no opinion
as to the merits of the substantive issues presented.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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