467 B.R. 734
Bankr. S.D.N.Y.2012Background
- Adversary proceeding involves non-core and core-but-non-final-authority issues under Rule 9033 in a bankruptcy case (Trinsum/IFL) with consent from some defendants to final orders and judgments.
- Dismissal of Counts III and IV with prejudice as to all defendants; final as to Consenting Defendants, interlocutory as to Non-Consenting Defendants.
- Dismissal order designated as interlocutory for non-consenting defendants and as a partial final judgment for consenting defendants under Rule 54(b); no proposed findings of fact and conclusions of law were filed at dismissal.
- Distributing Agent seeks to amend the dismissal order to trigger immediate review of non-consenting defendants; Stern v. Marshall discussed but not controlling without consent.
- Court held the dismissal remains interlocutory as to non-consenting defendants; no amendment granted; district court review to be sought discretionary under 28 U.S.C. § 158(a)(3).
- Opinion indicates the district court, not the bankruptcy court, should determine reviewability for non-consenting defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal of fewer than all claims is interlocutory and not immediately appealable | O'Toole argues dismissal creates immediate review rights. | Non-Consenting Defendants oppose immediate review. | Interlocutory; discretionary review by district court under §158(a)(3) |
| Whether Rule 9033 required proposed findings at dismissal | Rule 9033 requires proposed findings for non-core proceedings. | No requirement to file findings at dismissal. | Not required at the time of dismissal; proposed findings may be optional unless district court orders otherwise |
| Whether Rule 54(b) partial judgment could be entered for non-consenting defendants | Partial final judgment should be entered to allow immediate appeal. | Partial judgment cannot be entered for non-consenting claims absent final disposition. | Partial judgment under Rule 54(b) could not be entered for Non-Consenting Defendants; remains interlocutory |
| Whether Stern v. Marshall affects authority to issue final orders in non-core matters absent consent | Stern limits final judgments in non-core matters. | Stern does not compel immediate review absent consent; interlocutory matters permissible. | Stern does not control review in absence of consent; interlocutory review remains discretionary |
| Whether the Distributing Agent may seek immediate district-court review now | Distributing Agent seeks immediate review of dismissal as to non-consenting. | District court review should be discretionary and not now. | District-court discretion governs; no immediate review granted |
Key Cases Cited
- In re Pan Am Corp., 159 B.R. 396 (S.D.N.Y. 1993) (interlocutory orders in non-core proceedings; final disposition reserved for district court)
- In re M.S.V., Inc., 892 F.2d 5 (1st Cir. 1989) (interlocutory nature of partial dismissals)
- In re King City Transit Mix, Inc., 738 F.2d 1065 (9th Cir. 1984) (interlocutory order when not all claims resolved)
- In re Chateaugay Corp., 922 F.2d 86 (2d Cir. 1990) (summary judgment partial, interlocutory as to some claims)
- Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404 (3d Cir. 1980) (finality within multi-party actions; 54(b) considerations)
- Saco Local Dev. Corp., 711 F.2d 441 (1st Cir. 1983) (flexible finality in bankruptcy proceedings)
- Kennedy, Elkins v. X-Alpha International, Ltd., 48 B.R. 621 (Bankr. D. Ariz. 1985) (non-core proceedings may have interlocutory orders; avoid overbroad referrals)
- Hill v. New Concept Energy (In re Yazoo Pipeline Co., L.P.), 459 B.R. 636 (Bankr. S.D. Tex. 2011) (Stern limitations on final orders in certain core proceedings)
- Stern v. Marshall, 131 S. Ct. 2594 (U.S. 2011) (bankruptcy court lacks authority to enter final judgment on certain non- Article III-consistent claims absent consent)
- Elkins v. X-Alpha International, Limited (In re Kennedy), 48 B.R. 621 (Bankr. D. Ariz. 1985) (support for bankruptcy court handling pretrial matters in non-core proceedings)