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In re Kolb

United States District Court, Ninth Circuit

January 9, 2014

IN RE JEFFREY ALBERT KOLB; HEIDI ELAINE KOLB, Debtors,
v.
JEFFREY ALBERT KOLB AND HEIDI ELAINE KOLB, Appellees. JEFF ASHBURN AND LINDA ASHBURN; SANDRA MCBRIDE; JOY PHOENIX; BONNIE ALLEN; DOTTI OHLMAN; KIMBER INNECKEN, Appellants, Adv. No. 4:10-AP-2034-EWH

ORDER

CINDY K. JORGENSON, District Judge.

Pending before the Court is the Motion to Dismiss Appeal (Doc. 9) filed by Debtors Jeffrey Albert Kolb and Heidi Elaine Kolb (collectively, "the Kolbs"). A response has been filed by Appellants Jeff Ashburn, Linda Ashburn, Sandra McBride, Joy Phoenix, Bonnie Allen, Dotti Ohlman, and Kimber Innecken (collectively, "Appellants").

Procedural History

A Chapter 7 bankruptcy action was filed on July 7, 2010, by the Kolbs. A Complaint Objecting to Discharge of Debtors and Discharge of Debt was filed on November 12, 2010, by Appellants.

The Bankruptcy Court issued a scheduling order on April 27, 2011.[1] The scheduling order included a deadline for the filing of dispositive motions of 75 days before trial. Bankruptcy Case 4:10-ap-02034-EWH, Doc 19.

On August 10, 2011, a Motion to Amend Complaint was granted and, on August 23, 2011, Appellants filed an Amended Complaint. Bankruptcy Case 4:10-ap-02034-EWH, Doc. 31.

A Motion to Amend the Complaint to include a request for attorneys' fees and costs was filed on February 27, 2012. The Kolbs filed an objection to the motion. The Bankruptcy Court denied the motion on March 5, 2012. Trial was held on March 5, 2012, May2, 2012, and May 14, 2012. Appellants filed a Motion for Reconsideration as to the denial of the request for attorneys' fees on April 26, 2012; the Kolbs filed an objection. The Bankruptcy Court denied the Motion for Reconsideration on May 2, 2012.

Additionally, on March 1, 2012, Appellants filed a Unilateral Pre-Trial Statement. Bankruptcy Case 4:10-ap-02034-EWH, Doc. 43. The Unilateral Pre-Trial Statement did not include a request for attorneys' fees. As an affidavit as discussed in the Bankruptcy Court's scheduling order had not been filed, the Bankruptcy Court did not consider the Unilateral Pre-Trial Statement. See Doc. 8, Tab 4.

On December 26, 2012, the Bankruptcy Court found in favor of Appellants and the Kolbs were denied a discharge. The Kolbs' subsequent Motion for Reconsideration and Discharge was granted. See Bankruptcy Case 4:10-bk-21238-EWH, Doc 145.

On January 10, 2013, Appellants filed an appeal to this Court on the issue of the denial of the Motion to Amend Complaint.

On August 27, 2013, Appellants filed their Opening Brief (Doc. 7). The issue presented on appeal is whether the Bankruptcy Court exceeded its authority in denying the filing of an Amended Complaint where the only change was to add a request for attorneys' fees. Appellants argue the Bankruptcy Court abused its discretion in denying leave to amend.

On September 11, 2013, the Kolbs filed a Motion to Dismiss Appeal (Doc. 9). Appellants have filed a response (Doc. 10).

Motion to Dismiss

The Kolbs argues the orders denying the Appellants relief are not final appealable orders. The Kolbs also argue the Bankruptcy Court did not abuse its discretion in denying Appellants' request to file an ...


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