Opinion
MEMORANDUM RE PLAINTIFF'S MOTION FOR RELIEF FROM ORDER
THOMAS E. CARLSON, Bankruptcy Judge
Upon due consideration, and for the reasons stated below, the court denies Plaintiff's Motion for Relief from Order for lack of jurisdiction to amend the order entered by the court on June 15, 2009. This memorandum shall constitute the court's findings of fact and conclusions of law.
FACTS
On February 26, 2009, the court entered judgment on the pleadings in this action (the Judgment). The Judgment enjoined Defendants from prosecuting prepetition claims, because such claims belonged to the estate and could only be prosecuted by the trustee, absent abandonment to Debtor.
On March 9, 2009, Defendants filed Motions to Reconsider the Judgment. On April 3, 2009, the court held a hearing on the Motion to Reconsider the Judgment, and took the matter under submission. On June 15, 2009, the court entered an Order re the Motions to Reconsider (the Order). The Order abandoned all prepetition causes of action to Debtor on the grounds that the estate had sufficient funds to pay all claims in full, and that the trustee stipulated to abandonment of such claims. Plaintiff timely appealed the Order.
On January 19, 2010, Plaintiff filed a Motion for Relief from the Order (the Motion). The Motion seeks to set aside the Order on the grounds that Defendant Demas Yan lied when he told the court that Defendants had only one pending state-court lawsuit against Plaintiff.
LAW
The court lacks jurisdiction to set aside the Order, because Plaintiff filed a timely appeal of the Order. Sherman v. S.E.C. (In re Sherman) , 491 F.3d 948, 967 (9th Cir. 2007) (citation omitted).
The court declines to seek remand of the Order from the United States District Court, because the court would not grant the Motion if it had jurisdiction to do so. Assuming what Plaintiff says is true, this fact would not justify setting aside the Order because, in entering the Order, this court did not rely upon on the number of pending state-court decisions filed by Defendants against Plaintiff. Rather, the court relied upon on the trustee's consent to abandonment of all prepetition causes of action, and upon the fact that this is a surplus case.