Rubin, In re, No. 81-5761
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before ANDERSON, FERGUSON, and REINHARDT; J. BLAINE ANDERSON |
| Citation | 693 F.2d 73 |
| Parties | 9 Collier Bankr.Cas.2d 58, 9 Bankr.Ct.Dec. 1148, Bankr. L. Rep. P 68,900 In re Tom RUBIN, dba Tom Rubin & Associates, Alleged Debtor. BELO BROADCASTING, Teleco Indiana and Cox Broadcoasting Company, Petitioner-Creditors-Appellees, v. Tom RUBIN, dba Tom Rubin & Associates, Debtor-Appellant. |
| Decision Date | 02 November 1982 |
| Docket Number | No. 81-5761 |
Page 73
Bankr. L. Rep. P 68,900
BELO BROADCASTING, Teleco Indiana and Cox Broadcoasting
Company, Petitioner-Creditors-Appellees,
v.
Tom RUBIN, dba Tom Rubin & Associates, Debtor-Appellant.
Ninth Circuit.
Submitted July 20, 1982.
Decided Nov. 2, 1982.
Page 74
Gary E. Klausner, Robinson, Wolas & Diamant, Los Angeles, Cal., for debtor-appellant.
Daniel Slate, Gendel, Raskoff, Shapiro & Quittner, Los Angeles, Cal., for petitioners-creditors-appellees.
Appeal from the United States Bankruptcy Appellate Panels for the Ninth Circuit.
Before ANDERSON, FERGUSON, and REINHARDT, Circuit Judges.
J. BLAINE ANDERSON, Circuit Judge:
Rubin, the debtor in involuntary bankruptcy proceedings, appeals from the Order of the Bankruptcy Appellate Panel for the Ninth Circuit. The Appellate Panel reversed and remanded the Order of the Bankruptcy Court imposing sanctions against the creditors for failing to appear at their noticed depositions.
I. FACTS
We recite only a brief statement of the factual nature of this case because our disposition is conclusively determined by its procedural posture. Appellees, as petitioning creditors, initiated an involuntary bankruptcy petition against Rubin in February 1981. On March 12, appellant filed a motion to dismiss the case and later that afternoon served notices of depositions that were to begin four days later in Pittsburgh and continue one per day thereafter. Counsel met on March 13 to discuss the deposition schedule, but the only agreement reached was to continue the March 16 depositions to allow the creditors to make an application for a protective order. The court ordered the depositions to proceed as scheduled, but limited the amount of documents to be produced.
Rubin's counsel filed a motion for sanctions since, after having left for Pittsburgh, he learned the deponents would not appear on March 17. At the hearing (creditors did not attend), the bankruptcy judge issued an order for sanctions against the creditors. The creditors filed an emergency motion to stay the bankruptcy court order and an application to appeal to the Bankruptcy Appellate Panel for the Ninth Circuit. The appellate panel granted the stay pending appeal as to the depositions in Los Angeles for March 19 and 20, and granted the motion for leave to file an interlocutory appeal.
The issue presented to the appellate panel was whether the bankruptcy judge had abused his discretion in ordering the creditors to pay attorneys' fees and costs incurred when Rubin's attorneys went to Pittsburgh, and for his attorneys presenting the motion for sanctions. The August 13 Memorandum decision reversed and remanded for a noticed hearing. The panel concluded the bankruptcy judge had exceeded the discretion accorded him in Federal Rule of Civil Procedure 37 because the creditors were not given adequate notice. The new hearing was to allow the court to determine if "the failure [to appear] was substantially justified or that other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(b)(2); Fed.R.Bankr.P. 737.
Rubin filed an appeal with this court on September 3.
II. DISCUSSION
The only issue we address is whether jurisdiction exists for this court to consider
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an appeal from a decision of a bankruptcy appellate panel of a bankruptcy court's interlocutory order. We conclude it does not exist and file this opinion to aid courts below.A. Appeals Generally
As a general rule, federal appeals can only be taken from final orders. 28 U.S.C. Sec. 1291. Exceptions exist to this rule; two are statutory and two have developed in the cases. The statutory exceptions are for interlocutory orders granting or denying injunctions, 28 U.S.C. Sec. 1292(a)(1), and for interlocutory orders certified by the district court as presenting a "controlling question of law" which resolved, "may materially advance the ultimate termination of the litigation." 28 U.S.C. Sec. 1292(b).
The case law exceptions are from the leading cases of Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848), and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Forgay permitted appeals from interlocutory orders that dispose of substantive rights if delay would result in irreparable injury. See, 9 Moore's Federal Practice p 110.10 (2d ed. 1975). Cohen, on the other hand, framed an exception known as the "collateral order doctrine,"...
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Vylene Enterprises, Inc., In re, No. 91-55087
...turns property over to the trustee). Neither do we have jurisdiction over the reversal of an interlocutory discovery order. In re Rubin, 693 F.2d 73 (9th The most difficult cases are those in which the district court or bankruptcy appellate panel reverses a final order of the bankruptcy cou......
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Mason, In re, No. 82-5312
...whether these orders are first reviewed by a district court or, as in the Ninth Circuit, a bankruptcy appellate panel. In re Rubin, 693 F.2d 73, 76-77 (9th Cir.1982). Interlocutory orders are not appealable as of right. They may be reviewed at the discretion of the district courts, 28 U.S.C......
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Burley, In re, 83-5565
...has no jurisdiction to review the BAP decision in those cases. Compare 28 U.S.C. Sec. 1482 with 28 U.S.C. Sec. 1293; see In re Rubin, 693 F.2d 73, 76-77 (9th Cir.1982). This difference between the role of a magistrate and that of the BAP is not of constitutional significance. The court of a......
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Rubin, In re, No. 84-5675
...notice of the motion and hearing. Rubin appealed to this court, but we dismissed the appeal for lack of jurisdiction. In re Rubin, 693 F.2d 73, 76-77 (9th 2 The Bankruptcy Amendments modify subsections 303(b)(1) and (h)(1) of the Bankruptcy Code, 11 U.S.C. Sec. 303(b)(1), (h)(1), to read as......
-
Vylene Enterprises, Inc., In re, No. 91-55087
...turns property over to the trustee). Neither do we have jurisdiction over the reversal of an interlocutory discovery order. In re Rubin, 693 F.2d 73 (9th The most difficult cases are those in which the district court or bankruptcy appellate panel reverses a final order of the bankruptcy cou......
-
Mason, In re, No. 82-5312
...whether these orders are first reviewed by a district court or, as in the Ninth Circuit, a bankruptcy appellate panel. In re Rubin, 693 F.2d 73, 76-77 (9th Cir.1982). Interlocutory orders are not appealable as of right. They may be reviewed at the discretion of the district courts, 28 U.S.C......
-
Burley, In re, No. 83-5565
...has no jurisdiction to review the BAP decision in those cases. Compare 28 U.S.C. Sec. 1482 with 28 U.S.C. Sec. 1293; see In re Rubin, 693 F.2d 73, 76-77 (9th Cir.1982). This difference between the role of a magistrate and that of the BAP is not of constitutional significance. The court of a......
-
Rubin, In re, No. 84-5675
...notice of the motion and hearing. Rubin appealed to this court, but we dismissed the appeal for lack of jurisdiction. In re Rubin, 693 F.2d 73, 76-77 (9th 2 The Bankruptcy Amendments modify subsections 303(b)(1) and (h)(1) of the Bankruptcy Code, 11 U.S.C. Sec. 303(b)(1), (h)(1), to read as......