As everyone knows (or should know), the denial of a motion to withdraw the reference is not a final, appealable order. The Tenth Circuit teaches us that denial of withdrawal remains interlocutory, even if the district court has opened a new case and entered a final judgment denying the motion.
In an ugly fight between a divorced couple, the former husband filed an adversary proceeding in the former wife’s bankruptcy. The suit alleged claims for defamation and infliction of emotional distress, coupled with a claim that the debt should be nondischargeable. The complaint also sought a declaration that domestic support obligations were not dischargeable.
The former husband demanded a jury trial and did not consent to final judgment in the bankruptcy court. Later, the former husband filed a motion to withdraw the reference to the district court under 28 U.S.C. § 157(d).
The district court denied the withdrawal motion, dismissed the case in district court and entered judgment by a separate order. The former husband appealed, but the Tenth Circuit dismissed the appeal for lack of appellate jurisdiction.
Naturally, the circuit court’s unsigned dismissal order said there is appellate jurisdiction only for final orders that end the litigation and leave nothing aside from executing the judgment. The appeals court cited a Tenth Circuit decision from 1984 holding that withdrawal orders do not finally end the litigation.
Creative in the face of defeat, the former husband argued that denial of withdrawal was final because there was a judgment that terminated a separate case in the district court.
To rebut the argument, the circuit court cited one of its own decisions from 1992 holding, in a different context in a bankruptcy case, that a remand to bankruptcy court for further consideration was not final, even though it resolved the only issue raised in district court.
In four pages, the Tenth Circuit dismissed the appeal for lack of appellate jurisdiction.
As everyone knows (or should know), the denial of a motion to withdraw the reference is not a final, appealable order. The Tenth Circuit teaches us that denial of withdrawal remains interlocutory, even if the district court has opened a new case and entered a final judgment denying the motion.
In an ugly fight between a divorced couple, the former husband filed an adversary proceeding in the former wife’s bankruptcy. The suit alleged claims for defamation and infliction of emotional distress, coupled with a claim that the debt should be nondischargeable. The complaint also sought a declaration that domestic support obligations were not dischargeable.
The former husband demanded a jury trial and did not consent to final judgment in the bankruptcy court. Later, the former husband filed a motion to withdraw the reference to the district court under 28 U.S.C. § 157(d).