2:10-cv-02534 | D.S.C. | Oct 12, 2010
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
C/A NO.:2:10_2534-DCN-RSC
Charles Cathcart,
Appellant,
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Kevin Campbell, Trustee,
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This appeal, by Charles Cathcart (Appellant), from an Order
issued by the United States Bankruptcy Court for the District of
South Carolina, is before the undersigned United States Magistrate
Judge for a Report and Recommendation pursuant to the provisions of
28 U.S.C. § 636. Appellant seeks review of a Bankruptcy Court Order
issued on July 19, 2010, which directs the United States Marshal to
take the Appellant into custody and present him before the Court.
See Docket Entry No. 3-26. The Order allows Appellant, prior to
being apprehended, to give “at least seven (7) days notice of his
intent to voluntarily appear” before the Court. Id. at page 11.
While final orders of the Bankruptcy Court are appealable to
the District Court pursuant to 28 U.S.C. § 158(a)(l), interlocutory
orders and decrees of the Bankruptcy Court generally require leave
of the Court for such appellate review. 28 U.S.C. § 158(a)(3).
The determination of “[w]hat constitutes a final judgment in a
bankruptcy proceeding is more forgiving that the standard [which
applies] to civil proceedings under 28 U.S.C. § 1291,” however,
“[a]s a general rule, a final judgment under 28 U.S.C. § 1291 is
one which ends the litigation . . . and leaves nothing for the
court to but execute the judgment.” In re Rood, 426 B.R. 538" date_filed="2010-03-17" court="D. Maryland" case_name="In Re Rood">426 B.R. 538, 546
(D.Md.2010)(citations omitted). “An interlocutory order, by
contrast, is ‘one which does not finally determine a cause of
action but only decides some intervening matter pertaining to the
cause, and which requires further steps to be taken to enable the
court to adjudicate the cause on the merits.'” Id. (citing In re
Hebb, 53 B.R. 1003" date_filed="1985-10-01" court="D. Maryland" case_name="Guyther v. Hebb (In Re Hebb)">53 B.R. 1003, 1005 (D. Md. 1985)). The Order challenged in
the instant action does not determine a cause of action. Rather,
it is an interlocutory order which decides an intervening matter
pertaining to the cause, namely, making Appellant available to the
Court for examination. As such, the hearing of Appellant's appeal
by this Court requires “leave of court” and is discretionary. In
re Swann Limited Partnership, 128 B.R. 138" date_filed="1991-06-24" court="D. Maryland" case_name="K-Mart Corp. v. Swann Ltd. Partnership (In Re Swann Ltd. Partnership)">128 B.R. 138, 139 (D. Md. 1991).
It does not appear that the Appellant in this case filed a
motion for leave to appeal the Bankruptcy Court’s decision as
required by 28 U.S.C. § 158(a)(3). See also Fed. R. Bankr. P. Rule
8001(b). However, when an “appellant fails to file the required
motion but files a timely notice of appeal, Rule 8003(c) requires
the district court to . . . (1) grant leave to appeal, (2) order
the party to file a motion for leave to appeal, or (3) deny leave
to appeal after considering the notice of appal as a motion for
leave to appeal.” In re Poor, Civil No. 1:07cv247, 2008 WL 3925268
at *2 (W.D.N.C. Aug. 21, 2008)(quoting In re Faragalla, 422 F.3d
1208, 1211 (10ch Cir. 2005)). In the present case, Appellant filed
his notice of appeal with the Bankruptcy Court, as required by
Rule 8002(a) of the Federal Rules of Bankruptcy Procedure, within
fourteen (14) days of the issuance of the order directing the U.S.
Marshal to take him into custody,. Therefore, the undersigned will
consider Appellant's timely filed notice of appeal as a motion for
leave to appeal an interlocutory order.
District courts employ an analysis pursuant to 28 U.S.C. §
1292(b) when deciding whether to grant leave to appeal an
interlocutory order. In re Swyter, 263 B.R. 742" date_filed="2001-06-18" court="E.D. Va." case_name="Herrington v. Swyter (In Re Swyter)">263 B.R. 742, 749 at n.5 (E.D.
Va. 2001). Under this analysis, “leave to file an interlocutory
appeal should be granted only when 1) the order involves a
controlling question of law, 2) as to which there is substantial
ground for a difference of opinion, and 3) immediate appeal would
materially advance the termination of the litigation.” Atlantic
Textile Group, Inc. v. Neal, 191 B.R. 652" date_filed="1996-02-09" court="E.D. Va." case_name="Atlantic Textile Group, Inc. v. Neal">191 B.R. 652, 653 (E.D. Va.
1996)(citations omitted). In addition, “the appellant must
demonstrate ‘that exceptional circumstances justify a departure
from the basic policy of postponing appellate review until after
the entry of a final judgment.'” KPMG Peat Marwick, L.L.P. v.
Estate of .Nelco, Ltd., 250 B.R. 74" date_filed="2000-06-28" court="E.D. Va." case_name="KPMG Peat Marwick, L.L.P. v. Estate of Nelco, Ltd.">250 B.R. 74, 78 (E.D.Va. 2000)(citing
Coopers & Lybrand v. Livesay, 437 U.S. 463" date_filed="1978-06-21" court="SCOTUS" case_name="Coopers & Lybrand v. Livesay">437 U.S. 463, 475 (1978)).
In the instant action, the Order involved clearly involves no
question of controlling law, Further, it appears that the Order,
directing Appellant to be brought before the Bankruptcy Court for
examination, has been made to advance termination of the
litigation, and appeal of that Order is counterproductive of that
effort. Additionally, as the Order allows Appellant to avoid being
taken into custody by giving seven days notice of his intent to
voluntarily appear before the Bankruptcy Court, “exceptional
circumstances,” sufficient to justify appellate review prior to
entry of a final judgment, do not exist. Therefore, it is
recommended that leave to appeal the Bankruptcy Court Order be
denied.
Conclusion
Accordingly, it is recommended that the District Court deny
Appellant leave to appeal the Bankruptcy Court Order and dismiss
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Robert S. Carr
United States Magistrate Judge
the instant action.
october /L , 2010
Charleston, South Carolina
Appellant's attention is directed to the important notice on the
next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written
objections to this Report and Recommendation with the District
Judge. Objections must specifically identify the portions of the
Report and Recommendation to which objections are made and the
basis for such objections. “[I]n the absence of a timely filed
objection, a district court need not conduct a de novo review, but
instead must ‘only satisfy itself that there is no clear error on
the face of the record in order to accept the recommendation.'”
Diamond v. Cblonial Life & Acc. Ins. Cb., 416 F.3d 310" date_filed="2005-07-25" court="4th Cir." case_name="Rovilma Diamond v. Colonial Life & Accident Insurance Company">416 F.3d 310 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14)
days of the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P.
6(a), (d). Filing by mail pursuant to Federal Rule of Civil
Procedure 5 may be accomplished by mailing objections to:
Larry W. Propes, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this
Report and Recommendation will result in waiver of the right to
appeal from a judgment of the District Court based upon such
Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140" date_filed="1986-01-27" court="SCOTUS" case_name="Thomas v. Arn">474 U.S. 140
(1985); Wright V. Cbllins, 766 F.2d 841" date_filed="1985-01-07" court="4th Cir." case_name="Garcia Jay Wright v. George Collins, Warden, Maryland Penitentiary Dr. Berry Officer Larry Donnell">766 F.2d 841 (4th Cir. 1985); United
States v. Schronce, 727 F.2d 91" date_filed="1984-05-21" court="4th Cir." case_name="United States v. Edward Lester Schronce, Jr.">727 F.2d 91 (4th Cir. 1984).