DONALD M. HEAVRIN, Appellant,
J. BAXTER SCHILLING, Bankruptcy Trustee for Triple S Restaurants, Inc., Appellee. Bankr. Action No. 12-33799.
CHARLES R. SIMPSON, III, Senior District Judge.
This matter has come before the court on appeal from an order of the United States Bankruptcy Court granting the expedited motion of J. Baxter Schilling, Trustee for Triple S Restaurants, Inc., to extend the deadline for objecting to the debtor's discharge and for determining dischargeability of debts. (DN 1-1).
The motions relating to this appeal are legion. The court will address only those motions as are necessary to reach the threshold question of whether Appellant Donald M. Heavrin seeks review of a final and appealable order.
The Trustee filed a motion to dismiss on the ground of lack of jurisdiction, urging that the order with which Heavrin takes issue is neither final and appealable nor otherwise interlocutorily appealable under 28 U.S.C. § 158(a):
The district courts of the United States shall have jurisdiction to hear appeals
(1) from final judgments, orders and decrees;
(2) from interlocutory orders and decrees issued under section 1121(d) of title 11 increasing or reducing the time periods referred to in section 1121 of such title; and
(3) with leave of the court, from other interlocutory orders and decrees...
There is no question that subsection 2 of the statute is inapplicable. Neither party argues to the contrary. Heavrin has responded, however, that (1) the order of the bankruptcy court "resolves a discrete dispute, " (2) the order was made "final and appealable" by the bankruptcy court, and (3) the order should be treated by the district court as an interlocutorily appealable order. (DN 12).
The Trustee has moved to strike Heavrin's response on the ground that it was filed beyond the deadline set forth in Bankr. R. 8011(a), unaccompanied by a motion for leave of court to file the response out of time. (DN 14). Heavrin asserts that his response was timely filed inasmuch as he relied upon the computer-generated deadline which appears on the docket sheet for this case.
The court will deny the motion to strike.
The district court is charged with the duty of assessing its jurisdiction and must sua sponte dismiss cases in which subject matter jurisdiction is lacking. See, Nagalingam v. Wilson, Sowards, Bowling & Costanzo, 8 Fed.Appx. 486, 2001 WL 493392 (6th Cir. May 1, 2001); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); Anusbigian v. Trugreen/Chemlawn, Inc. 72 F.3d 1253, 1254 (6th Cir. 1996). The court would, in this instance, seek input from all parties concerning the question of jurisdiction prior to ruling. The Trustee has not shown that it would suffer any prejudice from the court's consideration of Heavrin's response, and it has replied thereto.
An order is "final if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Fleet Data Processing Corp. v. Branch, 218 B.R. 643, 645 (1st Cir. BAP 1998). By contrast, "[an] interlocutory order "only decides some intervening matter pertaining to the cause, and requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.'" Id. at 646, quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir. 1985). Clearly, an order extending the deadline for determining the dischargeability of debts only decides an intervening matter pertaining to the cause, and thus is not a final order. See Lure Launchers, LLC v. Spino, 306 B.R. 718 (1st Cir. BAP 2004)("To the extent that the Order denied the Appellant's request for an extension of time to object to the Debtor's discharge under § 727, it is not a final appealable order because it did not conclusively determine whether a complaint under § 727 may be filed in the bankruptcy case."); In re LWD, Inc, 335 Fed.Appx. 523, 2009 WL 1747834 (6th Cir. June 19, 2009)(orders, such as orders substituting counsel, not final).
Heavrin contends that an extension of the deadline to object to a debtor's discharge has been found to be a contested matter subject to notice and hearing, and is thus a discrete an appealable dispute within the bankruptcy action. He cites In re Coggin, 30 F.3d 1443 (11th Cir. 1994) in support of this argument. We note, however, that In re Coggin does not stand for the proposition that such an order is interlocutorily appealable. In re Coggin was ...