SS Farms, LLC v. Sharp (In re SK Foods, L.P.)

• Decision Date: 09 February 2012
• Docket Number: Nos. 10–16153,10–16154,10–16155,10–16157,10–16156,10–16160.,s. 10–16153
• Parties: In the Matter of SK FOODS, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants, v. Bradley D. Sharp, Trustee–Appellee.In the Matter of SK FOODS, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants, v. Bradley D. Sharp, Trustee–Appellee.In the Matter of SK Foods, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants, v. Bradley D. Sharp, Trustee–Appellee.In the Matter of SK Foods, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC FARMS I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants, v. Bradley D. Sharp, Trustee–Appellee.In the Matter of SK Foods, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants, v. Bradley D. Sharp, Trustee–Appellee.In the Matter of SK Foods, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants, v. Bradley D. Sharp, Trustee–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 1750

2012 Daily Journal D.A.R. 1859

56 Bankr.Ct.Dec. 5

676 F.3d 798

In the Matter of SK FOODS, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants,

v.Bradley D. Sharp, Trustee–Appellee.In the Matter of SK FOODS, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants,

v.Bradley D. Sharp, Trustee–Appellee.In the Matter of SK Foods, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants,

v.Bradley D. Sharp, Trustee–Appellee.In the Matter of SK Foods, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC FARMS I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants,

v.Bradley D. Sharp, Trustee–Appellee.In the Matter of SK Foods, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants,

v.Bradley D. Sharp, Trustee–Appellee.In the Matter of SK Foods, L.P. and RHM Industrial/Specialty Foods, Inc., Debtor.SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC, SSC Farms II, LLC, and Scott Salyer, Appellants,

v.Bradley D. Sharp, Trustee–Appellee.

Nos. 10–16153

10–16154

10–16155

10–16156

10–16157

10–16160.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 15, 2011.Filed Feb. 9, 2012.

Kelly A. Woodruff (argued), Farella Braun & Martel LLP, San Francisco, CA, for the appellants.

Malcolm S. Segal, James R. Kirby II and James P. Mayo, Segal & Kirby LLP, Sacramento, CA, for appellant Scott Salyer.

Larry J. Lichtenegger, Lichtenegger Law Office, Carmel, CA, for appellants SS Farms, LLC, SSC Farming, LLC, SSC Farms I, LLC and SSC Farms II, LLC.Nancy Winkelman (argued) and Bruce Merenstein, Schnader Harrison Segal & Lewis LLP, Philadelphia, PA, Gregory C. Nuti and Kevin W. Coleman, Schnader Harrison Segal & Lewis LLP, San Francisco, CA, for the appellee.Appeal from the United States District Court for the Eastern District of California, Morrison C. England, Jr., District Judge, Presiding. D.C. Nos. 2:09–cv–02937–MCE, 2:09–cv–02938–MCE, 2:09–cv–02940–MCE, 2:09–cv–02941–MCE, 2:09–cv–02942–MCE, 2:09–cv–02939–MCE.Before: ALEX KOZINSKI, Chief Judge, CARLOS T. BEA, Circuit Judge, and ROBERT W. GETTLEMAN, Senior District Judge.^*

OPINION

BEA, Circuit Judge:

A trustee in Chapter 11 bankruptcy proceedings took possession of Appellants' documents, which Appellants had deposited at the debtor's office. Appellants claim the trustee acted illegally; that the documents should be returned; and that the trustee and his counsel should be removed. The bankruptcy court denied such relief, and the district court affirmed. This appeal raises the issue whether such orders of the bankruptcy court, affirmed by the district court, are final appealable orders under 28 U.S.C. § 158(d)(1). As explained below, we hold that they are not; accordingly, we dismiss for lack of jurisdiction.

I. Facts and Procedural History

Debtor SK Foods permitted Appellants to store financial, business, estate planning, and other documents on its premises. Some of these documents were physically stored on site; others were stored in a combined computer system run by SK Foods personnel.

In April 2008, the United States Department of Justice Antitrust Division and other government agencies raided the premises of SK Foods, seized “an enormous volume of records and copied many other documents and computers.” The raid was followed by a federal grand jury investigation and criminal informations charging current and former employees of SK Foods with fraud, bribery and other offenses.

More than a year later, SK Foods filed for Chapter 11 bankruptcy. Bradley Sharp was appointed as trustee of the debtor's estate, and he took possession of all records located on its premises, including documents and electronic files belonging to Appellants. Upon discovering that the trustee had taken possession of their documents, Appellants demanded return of the original documents without further review. The trustee refused, stating that possession and review of the documents were attendant to the discharge of his duties.

Appellants filed a motion to remove the trustee and disqualify his counsel on the grounds that the seizure and continued possession of Appellants' documents violated the Fourth Amendment and various state laws. On the same grounds, Appellants' motion also requested a protective order requiring the return of their documents. The trustee filed a counter-motion requesting an order confirming his authority to continue to possess and review the documents.

The bankruptcy court held oral argument on three issues: (1) removal of the trustee; (2) disqualification of the trustee's counsel; and (3) the trustee's continued possession of Appellants' documents. It then denied Appellants' motion and granted the trustee's counter-motion.

Appellants appealed to the district court, which affirmed the bankruptcy court on all issues. Appellants appealed to this court.

II. Jurisdiction

Under 28 U.S.C. § 158(d)(1), we have appellate jurisdiction over “final orders of the district courts reviewing bankruptcy court decisions.” In re Westwood Shake & Shingle, Inc., 971 F.2d 387, 389 (9th Cir.1992). “To determine whether a district court order is final, we must look to the nature of the underlying bankruptcy court order. If the underlying bankruptcy court order is interlocutory, so is the district court order affirming or reversing it.” Id. (internal citation omitted). Although the district courts have discretion to consider interlocutory appeals, we do not. Id.

A bankruptcy court order is considered final “where it 1) resolves and seriously affects substantive rights and 2) finally determines the discrete issue to which it is addressed.” In re AFI Holding, 530 F.3d 832, 836 (9th Cir.2008) (internal quotation marks and citations omitted).

The bankruptcy court's order denying removal of the trustee is not final: It neither resolves nor seriously affects substantive rights, nor finally determines the discrete issue to which it is addressed, since the trustee could be removed at a later time. Moreover, if a party could file an interlocutory appeal every time he tried unsuccessfully to remove a trustee, he could bring the litigation to a never-ending standstill.

In AFI Holding, this court held that a bankruptcy court's order granting removal of a trustee is a final order. Id. at 837. However, the two situations—removal and denial of removal—are not symmetrical. So long as a trustee remains in office, the status quo ante continues and...