In considering whether to grant leave to appeal, a district court "looks to the standards set forth in 28 U.S.C. § 1292(b), which concerns the taking of interlocutory appeals from the district court to the court of appeals." In re Roderick Timber Co., 185 B.R. 601, 604 (B.A.P. 9th Cir. 1995); see also In re Belli, 268 B.R. 851, 858 (B.A.P. 9th Cir. 2001) ("We look for guidance to the standards developed under 28 U.S.C. § 1292(b) to determine if leave to appeal should be granted [under section 158(a)(3) ]."). Additionally, "[i]nterlocutory appeals are generally disfavored and should only be granted where extraordinary circumstances exist."
In considering whether to grant leave to appeal, courts generally "loo[k] to the standards set forth in 28 U.S.C. § 1292(b), which concerns the taking of interlocutory appeals from the district court to the court of appeals." In re Roderick Timber Co., 185 B.R. 601, 604 (B.A.P. 9th Cir. 1995); see also In re Belli, 268 B.R. 851, 858 (B.A.P. 9th Cir. 2001) ("We look for guidance to the standards developed under 28 U.S.C. § 1292(b) to determine if leave to appeal should be granted [under section 158(a)(3)]."). The relevant question under 28 U.S.C § 1292(b) is "whether the order on appeal involves a controlling question of law as to which there is a substantial ground for difference of opinion and whether an immediate appeal may materially advance the ultimate termination of the litigation.
"[F]inality for purposes of jurisdiction over `as of right' appeals under 28 U.S.C. section 158(a)(1) in adversary proceedings does not differ from finality in ordinary federal civil actions under 29 U.S.C. section 1291." Oliner v. Kontrabecki, 305 B.R. 510, 525 (N.D.Cal. 2004) (quoting In re Belli, 268 B.R. 851, 856 (9th Cir. BAP 2001)). Moreover, appellate courts have consistently applied Fed.R.Civ.P. 54(b) in bankruptcy adversary proceedings.
In bankruptcy cases, the Ninth Circuit applies a "flexible finality" rule. See Dyer, 322 F.3d at 1187; Belli v. Temkin (In re Belli), 268 B.R. 851, 854 (9th Cir. BAP 2001) (citing Dominguez v. Miller (In re Dominguez), 51 F.3d 1502, 1506 (9th Cir. 1995)). Flexible finality focuses upon whether the order affects substantive rights and finally determines a discrete issue.
According to the U.S. Bankruptcy Appellate Panel of the Ninth Circuit, “finality for purposes of jurisdiction over ‘as of right' appeals under 28 U.S.C. § 158(a)(1) in adversary proceedings does not differ from finality in ordinary federal civil actions under 28 U.S.C. § 1291.” In re Belli, 268 B.R. 851, 855 (9th Cir. 2001). Fed
See In re Trinsum Grp., Inc., 467 B.R. at 741 (“[O]rders granting summary judgment as to some or not all claims are generally regarded as interlocutory.” (citation omitted)); see also Belli v. Temkin (In re Belli), 268 B.R. 851, 855 (B.A.P. 9th Cir. 2001) (“[W]e hold that finality for purposes of jurisdiction over ‘as of right' appeals under 28 U.S.C. § 158(a)(1) in adversary proceedings does not differ from finality in ordinary federal civil actions under 28 U.S.C. § 1291.” (citation omitted)); Id. at 856-57 (“It is long-settled that a grant of partial summary judgment without a Rule 54(b) certification is interlocutory and not within an appellate court's jurisdiction over final orders.” (citation omitted)).
A determination of whether an order is final or interlocutory is jurisdictional and therefore can be raised sua sponte and reviewed de novo by an appellate court. See In re Bonham, 229 F.3d 750, 760-61 (9th Cir. 2000); In re Belli, 268 B.R. 851, 853 (B.A.P. 9th Cir. 2001). Denial of leave to appeal is left to the sound discretion of the court.
A determination of whether an order is final or interlocutory is jurisdictional and therefore can be raised sua sponte and reviewed de novo by an appellate court. See In re Bonham, 229 F.3d 750, 760-61 (9th Cir. 2000); In re Belli, 268 B.R. 851, 853 (B.A.P. 9th Cir. 2001). Denial of leave to appeal is left to the sound discretion of the court.
"Rule 54(b) controls the analysis of finality of judgments for purposes of appeal in federal civil actions, including bankruptcy adversary proceedings." Belli v. Temkin (In re Belli), 268 B.R. 851, 855 (9th Cir. BAP 2001). Although there is no judgment or Rule 54(b) certification, this Court may treat the appeal as a motion for leave to appeal, and it does so. Belli, 268 B.R. at 856-57.
"(FRCP] 54(b) controls the analysis of finality of judgments for purposes of appeal in federal civil actions, including bankruptcy proceedings." Belli v. Temkin (In re Belli), 268 B.R. 851, 855 (BAP 9th Cir 2001). FRCP 54(b), which has been incorporated into the bankruptcy code by Fed R Bankr P 7054(a), provides that: