Richard Samson v. Timothy Blixseth

FILED
NOT FOR PUBLICATION AUG 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: EDRA D. BLIXSETH, No. 12-35299
Debtor,
D.C. No. 2:12-cv-00004-SEH
RICHARD JOSEPH SAMSON, as
Chapter 7 Trustee of the Estate of Edra MEMORANDUM*
Blixseth,
Plaintiff - Appellee,
v.
TIMOTHY L. BLIXSETH; DESERT
RANCH LLLP; DESERT RANCH
MANAGEMENT LLC,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted August 26, 2013**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: HAWKINS, McKEOWN, and CLIFTON, Circuit Judges.
Timothy Blixseth, Desert Ranch LLLP, and Desert Ranch Management LLC
(collectively, “Blixseth”), appeal from the district court’s dismissal of Blixseth’s
appeal from the bankruptcy court’s denial of abstention. We dismiss this appeal
for lack of jurisdiction.
We do not have jurisdiction to hear interlocutory appeals in bankruptcy
cases. Silver Sage Partners, Ltd. v. City of Desert Hot Springs (In re City of Desert
Hot Springs), 339 F.3d 782, 787 (9th Cir. 2003). Although the “finality rule is
given additional flexibility in the bankruptcy proceedings context, traditional
finality concerns nonetheless dictate that we avoid having a case make two
complete trips through the appellate process.” Law Offices of Nicholas A. Franke
v. Tiffany (In re Lewis), 113 F.3d 1040, 1043 (9th Cir. 1997) (internal quotation
marks and citation omitted).
The bankruptcy court’s denial of Blixseth’s motion for abstention under 28
U.S.C. § 1334(c) is not a final order under 28 U.S.C. § 1291 or 28 U.S.C. § 158. It
did not “end[] the litigation on the merits,” Catlin v. United States, 324 U.S. 229,
233 (1945), nor did it “resolve[] and seriously affect[]” the parties’ substantive
rights, In re Lewis, 113 F.3d at 1043 (citation omitted). Because it may be
reviewed after a final judgment has been entered, the decision not to abstain does
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not qualify for immediate appeal under the collateral order doctrine. See Eastport
Assoc. v. City of Los Angeles (In re Eastport Assoc.), 935 F.2d 1071, 1075 (9th Cir.
1991) (“Whatever prematurity existed in the City’s original appeal of the decision
not to abstain has been cured by the entry of a final judgment on the merits. . . .
[O]nce a final judgment is entered, an appeal from an order that otherwise would
have been interlocutory is then appealable.”); cf. Confederated Salish v. Simonich,
29 F.3d 1398, 1403 (9th Cir. 1994) (“On appeal from a final judgment, a court of
appeals can review a district court’s refusal to abstain under Younger [v. Harris,
401 U.S. 37 (1971)], without implicating the mootness doctrine, even though the
district court has decided the merits of the case and all state proceedings have been
completed.”). Blixseth has not demonstrated that the bankruptcy court’s decision
not to abstain would be effectively unreviewable on appeal from a final judgment
or that he would otherwise be irreparably injured by waiting to appeal.
The appeal is DISMISSED.
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