Kemble, In re, Nos. 84-5976

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore GOODWIN, SNEED and SKOPIL; SNEED
Citation776 F.2d 802
Parties13 Collier Bankr.Cas.2d 873, 13 Bankr.Ct.Dec. 1078, Bankr. L. Rep. P 70,830 In re Donn KEMBLE, Debtor. PACKERLAND PACKING CO., INC., a Wisconsin corporation, Plaintiff-Appellee, v. GRIFFITH BROKERAGE COMPANY, et al., Defendants. and Donn Kemble, Defendant-Appellant.
Decision Date19 November 1985
Docket NumberNos. 84-5976,84-6193

Page 802

776 F.2d 802
13 Collier Bankr.Cas.2d 873, 13 Bankr.Ct.Dec. 1078,
Bankr. L. Rep. P 70,830
In re Donn KEMBLE, Debtor.
PACKERLAND PACKING CO., INC., a Wisconsin corporation,
Plaintiff-Appellee,
v.
GRIFFITH BROKERAGE COMPANY, et al., Defendants.
and
Donn Kemble, Defendant-Appellant.
Nos. 84-5976, 84-6193.
United States Court of Appeals,
Ninth Circuit.
Argued April 3, 1985.
Submitted Oct. 29, 1985.
Decided Nov. 1, 1985.
As Amended Nov. 19, 1985.

Page 803

Kendall O. Bates, Smith & Hilbig, Torrance, Cal., for plaintiff-appellee.

Keith E. McWilliams, Sullivan, McWilliams, Markham, Lewin, Christopher, & Disner, San Diego, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, SNEED and SKOPIL, Circuit Judges.

SNEED, Circuit Judge:

Donn Kemble appeals from the orders of the district court withdrawing a reference to the bankruptcy court and lifting the automatic stay to permit completion of a trial pending in the district court. We lack jurisdiction to review the order withdrawing the reference; however, we affirm the district judge's treatment of the automatic stay.

I.

FACTS AND PROCEEDINGS BELOW

This appeal has its origin in a contract dispute between Packerland Packing Co. (Packerland) and the Griffith Brokerage Co. (the Griffiths) that arose in June 1979. The Griffiths consulted their attorney, Donn Kemble (Kemble), who advised them to withhold payment from Packerland. Kemble helped the Griffiths form a corporation to which they transferred certain assets in violation of security agreements with Packerland. Packerland sued both Kemble and the Griffiths in the District Court of the Central District of California. Excerpt of Record (E.R.) at 140-43. On March 16, 1982, Packerland and the Griffiths entered into a settlement.

On June 9, 1982, judgment was entered against Kemble for conversion and for conspiracy to commit a fraudulent conveyance. The court found damages of $337,000 with approximately $65,000 in interest. E.R. at 170. We affirmed the trial court's finding of liability in October 1983 but remanded for retrial on the damages issue (hereinafter referred to as the "damages retrial"). Packerland Packing Co. v. Griffith Brokerage Co., 722 F.2d 746 (9th Cir.1983) (mem.).

Before this circuit's decision was rendered, however, Kemble filed a voluntary bankruptcy petition with the United States Bankruptcy Court for the Central District of California. Packerland filed a complaint in the bankruptcy proceeding seeking a determination that the judgment Kemble owed to Packerland was not dischargeable in bankruptcy (hereinafter referred to as

Page 804

the "dischargeability action"). 1 In April 1983, while the appeal of the district court judgment with respect to damages and interest was still pending before the Ninth Circuit, Packerland filed a motion in the district court to withdraw reference of the dischargeability action from the bankruptcy court. The district court denied that motion on June 27, 1983.

From January until April 1984, the parties prepared for the damages retrial in the district court. Kemble undertook substantial discovery. See E.R. at 347-49. Kemble also engaged in substantial negotiation of a pretrial conference order. See id. at 348-49. On March 14, 1984, the parties signed and filed that order. The case was set for trial on April 17, 1984. On April 12, both parties filed trial briefs.

Throughout the preparations for trial Kemble exhibited a tendency to act in a dilatory manner. For example, he deposed at least six witnesses whom he had already deposed in preparation for the initial trial. See id. at 347-49. Also he moved the court to reinstate as a defendant a California bank that had been dismissed from the suit pursuant to a stipulation Kemble had signed. See id. at 344, 347. And he refused to agree to proposals for pretrial conference orders because they included stipulated facts from the pretrial conference order Kemble had signed before the first trial. See id. at 348-49. Finally, on April 10, just seven days before the scheduled date for the damages retrial, Kemble removed the retrial from the district court to the bankruptcy court. 2

On April 16, one day before the scheduled trial, Packerland filed an ex parte application in the district court requesting withdrawal of reference of the damages retrial and also requesting relief from the bankruptcy court's automatic stay to permit the damages retrial to go forward. In addition, the ex parte application requested the district court to reconsider its June 27, 1983 denial of Packerland's first motion to withdraw reference of the dischargeability action. On April 16, Kemble's counsel for the damages retrial in district court was served with Packerland's application and informed that a hearing would be held on that application on the following day, April 17. Kemble's bankruptcy counsel, who was handling the dischargeability action, was not served with the application, however.

On April 17, 1984, the district court held the hearing on Packerland's ex parte application. Kemble, Kemble's bankruptcy counsel, and Kemble's counsel for the damages retrial were present. The court

Page 805

granted Packerland's application. Kemble's appeal from that order is before this court. 3

II.

JURISDICTION

Normally we have jurisdiction only over appeals from final orders of district courts. 28 U.S.C. Sec. 1291 (1982). 4 What orders are final for purposes of the statute is not always clear. See 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice paragraphs 110.06-.13 (2d ed. 1985) [hereinafter cited as Moore's Federal Practice]; 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Secs. 3905-3919 (1976 & Supp.1985) [hereinafter cited as Wright, Miller & Cooper]. The order in this case is not final within the ordinary meaning of the word. The damages retrial remains to be conducted and dischargeability remains to be determined.

The courts have recognized some special exceptions to the finality requirement "so as to avoid causing serious harm by delaying the appeal," Crocker National Bank v. American Mariner Industries (In re American Mariner Industries), 734 F.2d 426, 428 (9th Cir.1984). See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) (collateral order doctrine); Forgay v. Conrad, 47 U.S. (6 How.) 201, 203-04, 12 L.Ed. 404 (1848) (Taney, C.J.) (allowing appeals from orders in bankruptcy proceedings...

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69 practice notes
  • In re Miller, Case No. 20-20175-E-11
    • United States
    • United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Eastern District of California
    • November 16, 2020
    ...lack of good faith in filing a bankruptcy petition has often been used as cause for removing the automatic stay. See, e.g., In re Kemble, 776 F.2d 802, 807 (9th Cir. 1985) (debtor's dilatory behavior a proper consideration in lifting stay); Matter of Little Creek Development Co., 779 F.2d 1......
  • Kell v. Benzon, No. 17-4191
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 28, 2019
    ...2016) ("Typically, orders reviewable for abuse of discretion are not appealable under the collateral-order doctrine."); In re Kemble , 776 F.2d 802, 806 (9th Cir. 1985) ("Ordinarily we should not use the collateral order doctrine to examine the exercise of discretion by trial judges."). One......
  • Bonner Mall Partnership, In re, No. 92-36754
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 4, 1993
    ...order granting relief from the automatic stay was clearly final. 8 Packerland Packing Co. v. Griffith Brokerage Co. (In re Kemble), 776 F.2d 802, 805 (9th Cir.1985). Moreover, if Bancorp had foreclosed on the mall, Bonner's sole significant asset, for all intents and purposes the bankruptcy......
  • U.S. v. Cabaccang, No. 98-10159.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 6, 2003
    ...U.S.C. § 952(a)." Goggin, 853 F.2d at 845; accord Nueva, 979 F.2d at 884; Lueck, 678 F.2d at 905; Seni, 662 F.2d at 286. But cf. Perez, 776 F.2d at 802 n. 5 (addressing the analogous issue of a territorial contiguous This mountain of consistent authority is no impediment for the majority: I......
  • Request a trial to view additional results
69 cases
  • In re Miller, Case No. 20-20175-E-11
    • United States
    • United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Eastern District of California
    • November 16, 2020
    ...lack of good faith in filing a bankruptcy petition has often been used as cause for removing the automatic stay. See, e.g., In re Kemble, 776 F.2d 802, 807 (9th Cir. 1985) (debtor's dilatory behavior a proper consideration in lifting stay); Matter of Little Creek Development Co., 779 F.2d 1......
  • Kell v. Benzon, No. 17-4191
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 28, 2019
    ...2016) ("Typically, orders reviewable for abuse of discretion are not appealable under the collateral-order doctrine."); In re Kemble , 776 F.2d 802, 806 (9th Cir. 1985) ("Ordinarily we should not use the collateral order doctrine to examine the exercise of discretion by trial judges."). One......
  • Bonner Mall Partnership, In re, No. 92-36754
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 4, 1993
    ...order granting relief from the automatic stay was clearly final. 8 Packerland Packing Co. v. Griffith Brokerage Co. (In re Kemble), 776 F.2d 802, 805 (9th Cir.1985). Moreover, if Bancorp had foreclosed on the mall, Bonner's sole significant asset, for all intents and purposes the bankruptcy......
  • U.S. v. Cabaccang, No. 98-10159.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 6, 2003
    ...U.S.C. § 952(a)." Goggin, 853 F.2d at 845; accord Nueva, 979 F.2d at 884; Lueck, 678 F.2d at 905; Seni, 662 F.2d at 286. But cf. Perez, 776 F.2d at 802 n. 5 (addressing the analogous issue of a territorial contiguous This mountain of consistent authority is no impediment for the majority: I......
  • Request a trial to view additional results

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