Opinion
No. 67479
05-29-2015
AIRBORNE MEDIA GROUP, INC., A DELAWARE CORPORATION; AND AIRBORNE MEDIA GROUP, INC., A NEVADA CORPORATION, Appellants, v. MICHAEL CHAPMAN; ANDREW LENTVORSKI; WILLIAM MARTINSON; MARGARET MARTINSON; ROCK SYSTEMS HOLDINGS LLC; KEITH NEWBOLD; CAROLYN NEWBOLD; AND LSHADI PARTNERS LTD., Respondents.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123. ORDER DISMISSING APPEAL
Counsel for appellants have filed a "Petitioners' Status Report," informing this court that appellants have filed for relief under Chapter 11. The filing of a bankruptcy petition operates to stay, automatically, the "continuation" of any "judicial . . . action . . . against the debtor." 11 U.S.C. § 362(a)(1). An appeal, for purposes of the automatic stay, is considered a continuation of the action in the trial court. Consequently, an appeal is automatically stayed if the debtor was the defendant in the underlying trial court action. See Ingersoll-Rand Financial Corp. v. Miller Mining, Co. Inc., 817 F.2d 1424 (9th Cir. 1987). It appears that appellants were defendants below. Therefore, this appeal is stayed pursuant to the automatic stay provisions of federal bankruptcy law.
Given the applicability of the automatic stay, this appeal may linger indefinitely on this court's docket pending final resolution of the bankruptcy proceedings. Accordingly, we conclude that judicial efficiency will be best served if this appeal is dismissed without prejudice. Because a dismissal without prejudice will not require this court to reach the merits of this appeal and is not inconsistent with the primary purposes of the bankruptcy stay—to provide protection for debtors and creditors—we further conclude that such dismissal will not violate the bankruptcy stay. See Independent Union of Flight Attendants v. Pan American World Airways, Inc., 966 F.2d 457, 459 (9th Cir. 1992) (holding that the automatic stay does not preclude dismissal of an appeal so long as dismissal is "consistent with the purpose of the statute [11 U.S.C. §362(a)"]; Dean v. Trans World Airlines, Inc., 72 F.3d 754, 755 (9th Cir. 1995) (holding that a post-bankruptcy petition dismissal will violate the automatic stay "where the decision to dismiss first requires the court to consider other issues presented by or related to the underlying case").
The automatic stay provides a debtor "with protection against hungry creditors" and gives it a "breathing spell from its creditors" by stopping all collection efforts. Dean v. Trans World Airlines, Inc., 72 F.3d 754, 755 (9
Accordingly, we dismiss this appeal. This dismissal is without prejudice to appellant's right to move for reinstatement of this appeal within 90 days of either the lifting of the bankruptcy stay or final resolution of the bankruptcy proceedings, if appellants deem such a motion appropriate at that time.
It is so ORDERED.
/s/_________, J.
Parraguirre
/s/_________, J.
Douglas
/s/_________, J.
Cherry
cc: Hon. Nancy L. Allf, District Judge
Stephen E. Haberfeld, Settlement Judge
Iglody Hulet Hogan
Thomas E. Moore, III
Armstrong Teasdale, LLP/Las Vegas
Downey Brand LLP
Eighth District Court Clerk
th Cir. 1995). Further, it assures creditors "that the debtor's other creditors are not racing to various courthouses to pursue independent remedies to drain the debtor's assets." Id. At 755-6.