Commercial Financial Services, Inc. v. Temple (In Re Commercial Financial Services, Inc.)

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 8 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
In re: COMMERCIAL FINANCIAL
SERVICES, INC.; CF/SPC NGU,
INC.,
Debtors. No. 03-5122
(D.C. No. CV-03-286-K)
------------------------------------------ (N.D. Okla.)
COMMERCIAL FINANCIAL
SERVICES, INC.; BRADLEY D.
SHARP, Trustee of the CFS
Liquidating Trust,
Plaintiffs-Appellees,
v.
MIKE C. TEMPLE, an individual,
Defendant-Appellant.
______________________________
No. 04-5019
In re: MIKE C. TEMPLE, (D.C. No. CV-03-286-K)
(N.D. Okla.)
Petitioner.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BRISCOE , MURPHY , and O’BRIEN , Circuit Judges.
We have for consideration appellant’s motion for a stay pending appeal and
petition for writ of mandamus, and appellees’ motion to dismiss the appeal for
lack of jurisdiction. Upon consideration, we grant appellees’ motion to dismiss,
and deny appellant’s stay motion and petition for writ of mandamus.
Appellant Mike C. Temple is the defendant in an adversary proceeding filed
in the bankruptcy of appellee Commercial Financial Services, Inc. He filed this
appeal to challenge the district court’s interlocutory order denying his motion to
withdraw the reference to the bankruptcy court. The district court decided that
appellant had waived his right to a jury trial in the district court by waiting until
nine months after his jury demand to file a motion to withdraw the reference. See
Pet’n for Writ of Mandamus, Tab I at 2. In his stay motion filed in No. 03-5122,
appellant seeks an order from this court staying the June 2004 bench trial
scheduled in the bankruptcy court. In his mandamus petition, No. 04-5019, he
seeks an order directing the district court to withdraw the reference so that he can
have a jury trial in the district court.
This court’s precedent makes clear that a district court’s order denying a
motion to withdraw the reference is interlocutory and not immediately appealable
as a collateral order. See Dalton v. United States (In re Dalton) , 733 F.2d 710,
-2-
714-15 (10th Cir. 1984). Appellant concedes as much, but says that the district
court’s order states that the order is final, and so he filed this appeal, this stay
motion, and this mandamus petition to protect his rights. As he acknowledges,
however, the district court’s characterization of its order is not binding on this
court. Kaiser Steel Corp. v. Frates (In re Kaiser Steel Corp. , 911 F.2d 380, 385
(10th Cir. 1990). We agree. Under Dalton , the district court’s interlocutory order
is not final or immediately appealable.
Appellant seeks alternative relief through mandamus. Although we
considered this alternative in Dalton , we concluded that the writ is unavailable in
the usual case because of the availability of appeal from a final judgment.
733 F.2d at 717. We held that “[t]he remedy of a future appeal from a final
judgment . . . is inadequate and therefore justifies mandamus only when the
appeal is totally unavailable or when it cannot correct extraordinary hardship
because of the particular circumstances.” Id. (emphasis added). Appellant has
alleged no such extraordinary circumstances here; he has alleged only that the
lack of immediate review will cause him to go through a bench trial he does not
want. We conclude that mandamus relief should also be denied.
Without jurisdiction over an appeal, this court may not grant a stay pending
appeal. See Desktop Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755, 756-57,
-3-
760 (10th Cir. 1993), aff’d, 511 U.S. 863 (1994). Accordingly, appellant’s
motion for a stay is denied.
Plaintiffs-appellees’ motion to dismiss is granted and this appeal is
DISMISSED. Defendant-appellant’s motion for a stay pending appeal and
petition for writ of mandamus are denied.
ENTERED FOR THE COURT
PER CURIAM
-4-