United States District Court, D. Arizona
ORDER
Before
the Court is Appellant's Second Motion for Extension of
Time to Respond to Appellees' Motion to Dismiss Appeal as
Moot and for Lack of Appellate Standing (Doc. 14),
Appellees' response (Doc. 15), and Appellant's reply
(Doc. 16).
“It
is a fundamental tenet of federal civil procedure
that-subject to certain, defined exceptions-the filing of a
notice of appeal from the final judgment of a trial court
divests the trial court of jurisdiction and confers
jurisdiction upon the appellate court.” In re
Transtexas Gas Corp., 303 F.3d 571, 578-79 (5th Cir.
2002) (citing Griggs v. Provident Consumer Co., 459
U.S. 56, 58 (1982)). This is also applicable in bankruptcy
cases. Id. at 579. Here, the bankruptcy court
entered its final order on August 23, 2018. That same day,
Appellant noticed its appeal with the Ninth Circuit
Bankruptcy Appellate Panel (“BAP”). At that time,
the notice of appeal of the final order divested the
bankruptcy court of jurisdiction and placed jurisdiction with
BAP.[1]
Therefore, unless a motion falling within the class of
postjudgment motions that would revert jurisdiction of the
case back to the bankruptcy court was filed, the bankruptcy
court had no jurisdiction over the case as of August 23,
2018. See Fed. R. Bankr. P. 8002(b).
Federal
Rule of Bankruptcy Procedure 8002(b)(2) allows for a variety
of postjudgment motions to render the underlying bankruptcy
judgment nonfinal. One of those motions is a motion to alter
or amend the judgment under Rule 9023. Fed.R.Bankr.P.
8002(b)(1)(B). However, the Court looks to the substance of
the motion, not merely its name, in determining whether the
motion seeks to substantively alter or amend the judgment.
See In re Transtexas, 303 F.3d at 581; In re
McAuley, 66 B.R. 696, 699 (B.A.P. 9th Cir. 1986). After
reviewing the Motion for Clarification, the Court finds that
the motion is one that falls within the purview of
Fed.R.Bankr.P. 8002. In this case, where the timely appeal
was noticed before the postjudgment motion was timely filed,
[2] the
filing of the Motion for Clarification divested the appellate
court of jurisdiction (i.e., this Court) and
rendered the notice of appeal ineffective until the
postjudgment motion is adjudicated. Therefore, the bankruptcy
court has jurisdiction to rule on the Motion for
Clarification.[3]
Accordingly,
the notice of appeal currently pending before this Court is
ineffective until the Motion for Clarification is adjudicated
in bankruptcy court. Contrary to Appellees' arguments,
however, there is nothing procedurally improper with
Appellant's notice of appeal. Though Emerald
Equities' motion ultimately tolled the time for noticing
appeals, Appellant's notice was procedurally proper. In
any event, the bankruptcy court must rule on Emerald
Equities' motion before this Court may assume
jurisdiction over this appeal. Once the postjudgment motion
is ruled on, the notice of appeal will ripen into an
effective appeal. See Fed. R. Bankr. P. 8002(b)(2),
Advisory Committee Notes, 1994 Amendments; Miller v.
Marriott Int'l, Inc., 300 F.3d 1061, 1064 (9th Cir.
2002) (stating that when a case is dismissed based on a lack
of jurisdiction due to an ineffective notice of appeal, the
appellant's appeal rights are not curtailed, and
jurisdiction is not destroyed, but merely deferred). Thus,
given that the Court does not have jurisdiction over this
appeal and declines to stay the case for an indefinite
period, the Court dismisses this case,
without prejudice, until the bankruptcy court rules
on the pending postjudgment motion.
Accordingly,
IT IS ORDERED:
1. That Appellant's Motion (Doc. 14) is
denied;
2. That Appellees' Motion to Dismiss (Doc. 7) is
denied as moot;
3. That the Clerk of Court shall dismiss this case
without prejudice. Dated this 30th
day of November, 2018.
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Notes:
[1] The Court notes that the case was
transferred to this Court on September 12, 2018, following
the election of a district judge by one of the
parties.
[2] Appellant noticed its appeal on August
23, 2018, and Emerald Equities filed its Motion for
Clarification on August 26, 2018.
[3] Appellant's notice of appeal
challenges the same judgment that is the subject of Emerald
Equities' ...