Qdos, Inc. v. Matthew Hayden

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: QDOS, INC., No. 19-60066
Debtor, BAP No. 18-1301
------------------------------
MEMORANDUM*
QDOS, INC.,
Appellant,
v.
MATTHEW HAYDEN; et al.,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Taylor, Faris, and Spraker, Bankruptcy Judges, Presiding
Submitted November 18, 2020**
Pasadena, California
Before: RAWLINSON and HUNSAKER, Circuit Judges, and ENGLAND,***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
District Judge.
QDOS, Inc. (QDOS) appeals an order of the Bankruptcy Appellate Panel
(BAP) reversing the bankruptcy court’s dismissal of the involuntary bankruptcy
petition filed against QDOS and remanding for further proceedings.1 QDOS asserts
that the BAP’s order is a final, appealable order because it alters the status quo and
the rights of the parties. We determine de novo whether we have jurisdiction to
consider an appeal from the BAP and conclude that we lack jurisdiction in this
case. Gugliuzza v. FTC (In re Gugliuzza), 852 F.3d 884, 889 (9th Cir. 2017).
Only BAP orders that alter the status quo and fix the “rights and obligations
of the parties” are final, appealable orders. Ritzen Grp., Inc. v. Jackson Masonry,
LLC, 140 S. Ct. 582, 588 (2020) (internal quotation and citation omitted). Orders
remanding a case for additional substantive proceedings or “for further fact-finding
will rarely have this degree of finality, unless the remand order is limited to
ministerial tasks.” In re Gugliuzza, 852 F.3d at 897.
The BAP remanded this matter for the bankruptcy court to conduct further
proceedings on key issues, including: (1) determining whether QDOS can establish
that 11 U.S.C. § 303(b)(1)’s numerosity requirement applied: (2) allowing the
petitioning creditors to conduct discovery; and (3) affording other creditors the
1
We grant appellees’ request to take judicial notice of the bankruptcy court’s
tentative ruling dismissing the involuntary petition.
2
opportunity to join the involuntary petition.
The BAP’s decision may have altered the existing state of affairs by
reversing the bankruptcy court’s dismissal of the involuntary petition and
remanding for further proceedings, but it did not “fix[] the rights and obligations of
the parties” as is required for an order to be final under § 158(a). Ritzen Grp., Inc.,
140 S. Ct. at 588 (internal quotation and citation omitted). Therefore, we lack
jurisdiction, and this appeal is
DISMISSED.
3