Simu v. Carvalho (In re Carvalho)

598 B.R. 356
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 27, 2019
DocketBankruptcy Petition No. 15-646; Civil Action No. 18-92 (RBW)
StatusPublished
Cited by8 cases

This text of 598 B.R. 356 (Simu v. Carvalho (In re Carvalho)) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simu v. Carvalho (In re Carvalho), 598 B.R. 356 (D.C. Cir. 2019).

Opinion

II. STANDARD OF REVIEW

28 U.S.C. § 158 governs appeals from the bankruptcy courts to federal district courts. Section 158(a) provides that district courts have jurisdiction over 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[.]

28 U.S.C. § 158(a) (2018). Section 158 also provides that "[a]n appeal under subsection[ ] (a) ... of this section shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts." Id. § 158(c)(2).

III. ANALYSIS

A. Motion to Dismiss

Neither 28 U.S.C. § 158 nor Federal Rule of Bankruptcy Procedure 8013, which governs motions filed in bankruptcy appeals, addresses motions to dismiss a bankruptcy appeal, see 28 U.S.C. § 158 ; Fed. R. Bankr. P. 8013, and despite diligently searching, the Court has been unable to locate any cases in the District of Columbia Circuit that have set forth the standard of review for a motion to dismiss a bankruptcy appeal. Therefore, because a district court, pursuant to 28 U.S.C. § 158(c)(2), acts as an appellate court when reviewing decisions made by a bankruptcy court, see In re St. Charles Pres. Inv'rs, Ltd., 112 B.R. 469, 471 n.2 (D.D.C. 1990) ; see also In re Sollins, Civ. Action No. 95-0657, 1996 WL 61773, at *2 n.15 (D.D.C. Feb. 6, 1996), aff'd sub nom. Ross v. 1301 Connecticut Ave. Assocs., 99 F.3d 444 (D.C. Cir. 1996), the Court will follow this Circuit's practice with respect to motions to dismiss appeals. This Circuit construes motions to dismiss appeals as motions for summary affirmance, see, e.g., Solomon v. Supreme Court of Fla., No. 03-7002, 2003 WL 1873939, at *1 (D.C. Cir. Apr. 2, 2003), and has held that "[a] party seeking summary disposition bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified," Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). Thus, to summarily affirm a district court's order, the Circuit "must conclude that no benefit will be gained from further briefing and argument of the issues presented." Id. at 298. Further, in reviewing a motion to dismiss an appeal or a motion for summary affirmance, the Circuit "view[s] the record and the inferences to be drawn therefrom 'in the light most favorable to [the non-moving party].' " Id. (quoting United States v. Diebold Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ).

Under this standard of review, the Court concludes that Ross's motion to dismiss must be granted with respect to *360Simu's Removal Request because the merits of the parties' positions "are so clear that expedited action is justified." Taxpayers, 819 F.2d at 297 ; see Montague v. Conti Mortg. Co., Civ. Action No. 00-7103, 2000 WL 1225784, at *1 (D.C. Cir. July 31, 2000) (granting a motion to dismiss a bankruptcy appeal due to mootness). Ross's motion to dismiss the appeal with respect to the Leave to Sue Request, on the other hand, must be denied because the Court would "benefit ... from further briefing and argument of the issues presented." Taxpayers, 819 F.2d at 298.

1. Removal Request

Ross argues that this appeal should be dismissed as to the Removal Request because "it is no longer possible to grant [Simu] effective relief," Ross's Mot. to Dismiss ¶ 4 (citations omitted). Specifically, Ross argues that, "[s]ince the perfection of the instant appeal, the Bankruptcy Court ... closed (and reopened for a limited purpose) the underlying bankruptcy case of the Debtor, and discharged the Trustee." Id. ¶ 2. Ross therefore contends that, "[i]nasmuch as [Simu's] Removal Request sought only to replace the Trustee as the trustee of the open and existing Chapter 7 bankruptcy estate of the Debtor, ... the [appeal of the] Removal Request is moot." Id. ¶ 3.

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