Thompson v. C & W Diving Services, Inc. (In Re Thompson)

FILED
NOT FOR PUBLICATION
MAR 21 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: TRUMAN W. THOMPSON, No. 14-55512
Debtor, D.C. No. 3:13-cv-00994-BEN-
NLS
TRUMAN W. THOMPSON,
MEMORANDUM*
Debtor - Appellant,
v.
C&W DIVING SERVICES, INC.,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted March 9, 2016
Pasadena, California
Before: PREGERSON, PAEZ, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
C&W Diving Services, Inc. commenced an adversarial proceeding in the
chapter 7 bankruptcy of its former employee, Truman Thompson. On C&W’s
motion, the bankruptcy court issued sanctions against Thompson, striking his
answer and directing the clerk to enter default. Thompson appealed the bankruptcy
court’s sanctions order to the district court, which affirmed. He then appealed to
this court. “Although neither party raised the issue of whether we have jurisdiction
over this appeal, we must address the question sua sponte.” Hostler v. Groves, 912
F.2d 1158, 1160 (9th Cir. 1990). We dismiss Thompson’s appeal for lack of
appellate jurisdiction. See Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264
(1978).
Because an order awarding sanctions and entering default is not final until
judgment is entered, an appeal generally must be dismissed as premature when it is
taken after an order awarding sanctions and entering default but before the
determination of damages and entry of judgment. Baker v. Limber, 647 F.2d 912,
915–16 (9th Cir. 1981). At oral argument, Thompson conceded that his appeal
from the district court was premature. Indeed, Thompson appealed from the
bankruptcy court order “granting Terminating Sanctions and an Entry of Default”
on Aril 24, 2013, one day after the bankruptcy court granted sanctions, but over 16
months before the bankruptcy court entered judgment on September 11, 2014.
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Similarly, he appealed the district court’s adverse decision to this court on March
28, 2014, still over five months before the bankruptcy court entered judgment.
Nonetheless, at oral argument Thompson’s counsel asserted that we have
jurisdiction to review the sanctions order pursuant to Baker, Anderson v. Allstate
Ins. Co., 630 F.2d 677 (9th Cir. 1980), and United States v. Real Prop. Located at
475 Martin Lane, 545 F.3d 1134 (9th Cir. 2008). In Baker and 475 Martin Lane,
however, we had jurisdiction over the interlocutory orders in those cases because
they merged into final judgments from which the appellants timely appealed.
Baker, 647 F.2d at 916; 475 Martin Lane, 545 F.3d at 1140–41. In Anderson, we
held that “judgments whose finality normally would depend on a Rule 54(b)
certificate may be treated as final if remaining claims subsequently have been
finalized, even by developments occurring after appeal.” Baker, 647 F.2d at 916
(citing Anderson, 630 F.2d at 680–81). Thompson never appealed from the final
judgment, however, and the bankruptcy court’s sanctions order was not the type of
partial judgment “whose finality normally would depend on a Rule 54(b)
certificate.” Id. None of the three cases avails him.
Thompson’s counsel also directed the court to Federal Rule of Appellate
Procedure 4(a)(2) (“A notice of appeal filed after the court announces a decision or
order—but before the entry of the judgment or order—is treated as filed on the date
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of and after the entry.”). But we have held that Rule 4(a)(2) allows us to treat a
premature appeal as timely filed only “when ‘[a]ll that remained was the clerk’s
ministerial task of entering a Rule 58 judgment.’” Kennedy v. Applause, Inc., 90
F.3d 1477, 1483 (9th Cir. 1996) (quoting In re Jack Raley Constr., Inc., 17 F.3d
291, 294 (9th Cir. 1994)). Here the bankruptcy court’s sanctions order expressly
called for C&W to “file and serve documents, including admissible evidence, in
support of its default prove-up,” thus reserving a determination of liability and
damages. The remaining tasks were unlike the “ministerial task” of entering
judgment, Kennedy, 90 F.3d at 1483, so Rule 4(a)(2) does not permit us to treat
Thompson’s appeal as timely.
DISMISSED.
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