Settembre v. Fidelity & Guaranty Life Insurance

552 F.3d 438, 60 Collier Bankr. Cas. 2d 1701, 2009 U.S. App. LEXIS 44, 2009 WL 30288
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 7, 2009
Docket08-5083
StatusPublished
Cited by15 cases

This text of 552 F.3d 438 (Settembre v. Fidelity & Guaranty Life Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Settembre v. Fidelity & Guaranty Life Insurance, 552 F.3d 438, 60 Collier Bankr. Cas. 2d 1701, 2009 U.S. App. LEXIS 44, 2009 WL 30288 (6th Cir. 2009).

Opinion

OPINION

KETHLEDGE, Circuit Judge.

In this matter, the bankruptcy court granted the appellants (collectively, “Fidelity”) summary judgment on their complaint against the debtor, Fioravante Set-tembre, for denial of a discharge. The district court reversed and remanded the case for trial on Fidelity’s complaint. Fidelity now seeks review of the district court’s order.

I.

Between August 2001 and July 2003, Settembre and a third party borrowed approximately $700,000 from Fidelity to fund a business venture called InsBanc, Inc. The venture apparently failed, and, on October 15, 2005, Settembre filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. At Fidelity’s request, the bankruptcy court thereafter ordered Settembre to produce business records for the years 2003-05. After repeated delays, Settembre produced very few of the records that he was ordered to produce, and claimed the rest no longer existed.

In response, Fidelity filed a complaint under 11 U.S.C. § 727(a)(3), in which it sought to deny Settembre a discharge based upon his alleged failure to maintain records from which his financial condition could be ascertained. Fidelity thereafter moved for summary judgment on its com *440 plaint. The bankruptcy court granted the motion, finding that Setiembre was a “sophisticated person” who should have been able to produce the requested documents, and that his reason for not doing so — that he had lost them in a move — was “patently insufficient.”

Setiembre appealed to the district court, which reversed. That court held that Set-iembre “should have the opportunity to testify and present evidence regarding his level of sophistication, the complexity of his financial situation, the nature of [his] accounts], whether there are independent means of substantiating his financial transactions, and any other relevant information.” Accordingly, the district court remanded the case for trial on Fidelity’s complaint. Fidelity now seeks review of that order.

II.

We must determine whether the district court’s remand order is a “final” one over which we have jurisdiction under 28 U.S.C. § 158(d)(1). Most circuits — by our count, nine of them — hold that a district court order remanding a case to the bankruptcy court “is not final and appealable unless the remand is for ‘ministerial’ proceedings.” In re Holland, 539 F.3d 563, 565 (7th Cir.2008) (collecting cases). A minority of circuits — the Third and the Ninth— “apply multi-factor balancing tests to determine whether an order is final and ap-pealable in this context.” Id. (collecting cases). Their tests essentially boil down to the question whether “on balance the goal of an expeditious winding up of the bankruptcy proceeding will be furthered by allowing an immediate appeal.” In re Lopez, 116 F.3d 1191, 1193 (7th Cir.1997).

This circuit’s approach has been a body in motion. We passed very near the minority rule in In re Gardner, 810 F.2d 87 (6th Cir.1987), where we exercised jurisdiction over a district court order remanding the case to the bankruptcy court for further litigation of two issues, one legal and one factual. We deemed the order final because the legal issue required “no further factual development” and, standing alone, was potentially dispositive of the case. Id. at 92. We expressly limited our holding, however, to “the particular circumstances” of that case. Id.

Since then we have moved away from the minority rule. In In re Frederick Petroleum, 912 F.2d 850 (6th Cir.1990), the district court’s order would have been deemed final had we followed the Gardner approach. See In re Brown, 248 F.3d 484, 488 (6th Cir.2001). But we declined to follow Gardner, instead reading it to be “limited to the specific circumstances of that case.” Frederick Petroleum, 912 F.2d at 853. We further observed that Bankruptcy Rule of Procedure 7054 incorporates by reference Federal Rule of Civil Procedure 54; and we held that the district court’s “partial disposition” of the case was not final because the district court had not certified its order as such under Rule 54(b). Id. at 854.

We again declined to follow Gardner in In re Millers Cove, 128 F.3d 449 (6th Cir.1997). There — notwithstanding the presence of a legal issue that, standing alone, was potentially dispositive of the ease — we held that the district court’s order was not final because it had not been certified under Rule 54(b). Id. at 452. This trend continued in In re Yousif, 201 F.3d 774 (6th Cir.2000) where, absent a Rule 54(b) certification, we refused to exercise jurisdiction over an order “entered as ‘to one or more but fewer than all the claims or parties.’ ” Id. at 779 (quoting Rule 54(b)). In a concurring opinion, Judge Moore reviewed our varying approaches to this issue and asserted that “we should adopt ‘the prevailing view that *441 courts of appeals lack jurisdiction over appeals from orders of district courts remanding for significant further proceedings in bankruptcy courts.’ ” Id. at 783 (Moore, J., concurring) (quoting In Re Prudential Lines, Inc., 59 F.3d 327, 331 (2d Cir.1995)).

Finally, in In re Brown, 248 F.3d 484 (6th Cir.2001), we analyzed in some detail the Sixth Circuit authority discussed above, and concluded: “These cases make clear to us that the approach used in In re Gardner was limited to that case and this Circuit has refused to extend that approach further. Thus, the question of finality of a partial judgment turns only on Fed.R.Civ.P. 54(b) certification.” Id. at 488.

Since our 1987 decision in Gardner, then, this circuit has refused to exercise jurisdiction over bankruptcy appeals in which the district court has remanded the case for proceedings that were beyond ministerial.

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552 F.3d 438, 60 Collier Bankr. Cas. 2d 1701, 2009 U.S. App. LEXIS 44, 2009 WL 30288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/settembre-v-fidelity-guaranty-life-insurance-ca6-2009.