ALI INC. v. Cold Harbor Assoc ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALI INC.,
Plaintiff-Appellee,
v. No. 95-2688
COLD HARBOR ASSOCIATES, L.P.,
Defendant-Appellant.
ALI INC.,
Plaintiff-Appellant,
v. No. 95-2801
COLD HARBOR ASSOCIATES, L.P.,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-95-197, BK-94-33996-S)
Argued: April 3, 1996
Decided: May 9, 1996
Before MICHAEL and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
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Dismissed and remanded with instructions by unpublished per curiam
opinion.
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COUNSEL
ARGUED: Michael Allen Condyles, MALONEY, BARR & HUEN-
NEKENS, P.C., Richmond, Virginia, for Appellant. James MacNeill
Nolan, MAYS & VALENTINE, Richmond, Virginia, for Appellee.
ON BRIEF: Daniel A. Gecker, Susan Elaine Sieger, MALONEY,
BARR & HUENNEKENS, P.C., Richmond, Virginia, for Appellant.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
This is a bankruptcy appeal. ALI, Inc., as sole petitioning creditor,
put Cold Harbor Associates, L.P. (a Virginia limited partnership) into
involuntary bankruptcy under Chapter 11. The bankruptcy court
issued an order for relief, and Cold Harbor appealed to the district
court on several grounds. In the district court Cold Harbor claimed
(for the first time) that because it had twelve or more creditors, it
would take at least three of its creditors to place it into involuntary
bankruptcy. See 11 U.S.C. § 303(b). Cold Harbor told the district
court that it did not assert the three-petitioner requirement in its
answer because "the actual number of its creditors was not known
until depositions were concluded the day before the scheduled trial"
in bankruptcy court. See Appellant's Supp. Brief at 3. The district
court concluded that "[w]ithout the benefit of factual findings from
the Bankruptcy Court, [it was] unable to rule on whether ALI can
qualify as a sole petitioning creditor." Accordingly, the district court
"remanded [the case] to the Bankruptcy Court for a determination as
to the number of holders of claims against Cold Harbor at the time
the involuntary petition was filed."1
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1 Apart from the remand on the three-petitioner issue, the district court
affirmed the bankruptcy court by holding (1) that ALI's status as a non-
2
Notwithstanding the remand to bankruptcy court, Cold Harbor
appealed to this court "those aspects of the District Court Order that
affirmed the Bankruptcy Court Order." See Appellant's Opening Brief
at 5. ALI cross-appealed the portion of the district court order that
remanded for findings on the three-petitioner issue.
After initial briefing we asked the parties for supplemental briefing
on the question whether, in light of In Re The Wallace & Gale Co.,
72 F.3d 21 (4th Cir. 1995), we have jurisdiction to hear this appeal.
In Wallace & Gale certain parties applied under 28 U.S.C. § 158(a)
for leave to appeal the bankruptcy court's interlocutory order to the
district court. The district court remanded the case with the instruction
that the bankruptcy court certify (under a local rule) whether the order
on which appeal was sought warranted immediate review. Certain
parties noticed an appeal to us from the district court's remand order.
We dismissed the appeal, holding that we lacked jurisdiction because
the district court's remand order was neither final nor an appealable
interlocutory order.
ALI argues that the district court's order here may be treated as a
final order because Cold Harbor waived the issue remanded (the
three-petitioner issue) by not raising it before the bankruptcy court.
We, however, do not believe that the order can be considered final.
The district court was aware of ALI's waiver argument but neverthe-
less believed that a remand for factfinding on the number of creditors
was necessary. As a result, the district court expressly deferred deter-
mination of the three-petitioner issue. Under these circumstances, it
would not be appropriate for us to decide the waiver issue (and thus
perhaps the three-petitioner issue) in the first instance. Although we
have no idea at this stage how this subject will or should be resolved,
it at least has the potential to be dispositive of the case.
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recourse creditor did not prevent it from filing the involuntary petition,
(2) that Cold Harbor was generally not paying its debts as they came due,
and (3) that the involuntary petition should not be dismissed either under
section 305(a) of the Bankruptcy Code or on the ground that the petition
was filed in bad faith.
3
Because the district court's order is, in important part, a remand
order, it is non-final and therefore not appealable. See Wallace &
Gale, 72 F.3d at 24.2 Accordingly, we dismiss this appeal for lack of
jurisdiction, and we remand the case to the district court with instruc-
tions to remand it to the bankruptcy court for further proceedings in
accordance with the district court's remand order. See id. at 25; 28
U.S.C. § 2106.
DISMISSED AND REMANDED WITH INSTRUCTIONS
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2 We also disagree with ALI's fleeting suggestion that the district
court's order is an appealable interlocutory order under the collateral
order doctrine. "To be reviewable under that doctrine, an order must con-
clusively determine the disputed question, resolve an important issue
completely separate from the merits of the action and be effectively unre-
viewable on appeal from a final judgment." Wallace & Gale, 72 F.3d at
24 (citations and internal quotations omitted). The remand order here
does not meet this test. The district court expressly deferred a determina-
tion of the three-petitioner issue, and the issue would be reviewable on
appeal from a final judgment.
Finally, the district court did not certify this appeal under 28 U.S.C.
§ 1292(b).
4