Opinion
22-2049
12-21-2022
In re: SYLVIA MARIE BYRNES, Debtor. v. SYLVIA MARIE BYRNES, Defendant-Appellee. BARRY J. BYRNES, Plaintiff - Appellant,
D.C. No. 1:21-CV-00295-KWR-JHR, D. N.M.
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
ORDER
Appellant Barry J. Byrnes seeks review of the district court's order denying his motion to withdraw the reference of an adversary proceeding to the bankruptcy court. We abated the appeal pending the district court's disposition of Mr. Byrnes's captioned Motions with Supporting Affidavit Memorandum of Law Request for Certification [ECF No. 45], which the district court has now denied [ECF No. 62]. Accordingly, we lift the abatement of this appeal but dismiss it for lack of appellate jurisdiction as discussed in greater detail below.
The Debtor (Sylvia Marie Byrnes) filed her Chapter 7 bankruptcy petition in October 2020. Shortly thereafter, Mr. Byrnes filed two adversary proceedings in the federal bankruptcy court, which were consolidated on January 15, 2021. Mr. Byrnes filed an amended complaint in bankruptcy court on February 10, 2021, asserting: (1) claims for defamation and intentional infliction of emotional distress for which he asked that any judgment be declared non-dischargeable; and (2) a claim for declaratory judgment, declaring Ms. Byrnes's various contract and domestic support obligations non-dischargeable. Mr. Byrnes demanded a jury trial of all issues so triable and did not consent to the bankruptcy court hearing and determining his claims.
In March 2021, Mr. Byrnes filed a Motion for Withdrawal of Reference in the bankruptcy court. See 28 U.S.C. § 157(d) (permitting district court to withdraw reference to bankruptcy court upon timely motion of a party for cause shown). His motion was referred to the District of New Mexico [ECF No. 1] and assigned Case No. 1:21-CV-00295.
The district court referred the motion to Magistrate Judge Jerry Ritter for proposed findings and a recommended disposition ("PFRD"). Judge Ritter recommended that the motion be denied, and Mr. Byrnes timely objected to Judge Ritter's PFRD. [ECF Nos. 25, 28]. The district court conducted a de novo review, overruled those objections, denied Mr. Byrnes's motion to withdraw the bankruptcy reference, dismissed the case without prejudice, and entered judgment by separate order. [ECF Nos. 42, 43].
Mr. Byrnes moved for reconsideration of that decision. Before the district court ruled on Mr. Byrnes's motion for reconsideration of that decision, however, the bankruptcy court entered a final judgment dismissing the adversary proceeding, which Mr. Byrnes also appealed to the district court. See Adv. Proc. 20-1070-t (Bankr. D.N.M); Byrnes v. Byrnes, Case No. 2:22-cv-00426 (D.N.M.) (bankruptcy appeal filed June 6, 2022). The district court then denied Mr. Byrnes's motion for reconsideration of the denial of his motion to withdraw the bankruptcy reference in Case No. 1:21-CV-00295 as moot and, alternatively, as lacking a basis in fact or law. [ECF No. 62].
"Aside from a few well-settled exceptions, federal appellate courts have jurisdiction solely over appeals from 'final decisions of the district courts of the United States.'" Rekstad v. First Bank Sys., Inc., 238 F.3d 1259, 1261 (10th Cir. 2001) (emphasis omitted) (quoting 28 U.S.C. § 1291)). "A final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Graham v. Hartford Life & Accident Ins. Co., 501 F.3d 1153, 1156 (10th Cir. 2007) (citation and internal quotation marks omitted).
"[W]ithdrawal of reference . . . orders merely involve the selection or designation of the forum in which final decisions will be ultimately reached. They do not finally end the litigation." Dalton v. United States (In re Dalton), 733 F.2d 710, 714 (10th Cir. 1984); see also Lofstedt v. Oletski-Behrends (In re Behrends), No. 15-1489, 668 Fed.Appx. 832, 833 (10th Cir. 2016) (unpublished) (dismissing appeal of order denying motion to withdraw reference of adversary proceeding to bankruptcy court for lack of jurisdiction); cf. Loveridge v. Hall (In re Renewable Energy Dev. Corp.), 792 F.3d 1274, 1277 (10th Cir. 2015) (considering appeal from district court order assigning case to bankruptcy court where district court had certified its non-final decision for immediate appeal).
The order Mr. Byrnes appeals from here-which denied only the motion to withdraw the reference of an adversary proceeding to the bankruptcy court-is an interlocutory, non-appealable order over which this court lacks appellate jurisdiction. See Dalton, 733 F.2d at 715. The district court did not certify the order for immediate appeal. [ECF No. 62 at 9].
"Moreover, the fact that the district court opened a separate case to deal with the referred motion, and entered an order that resulted in the termination of that district court case, . . . does not mean that it entered a final order appealable to this court . . . ." See In re Behrends, 668 Fed.Appx. at 833 (citing Cascade Energy & Metals Corp. v. Banks (In re Cascade Energy & Metals Corp.), 956 F.2d 935, 937 (10th Cir. 1992) (holding that district court order remanding adversary proceeding to bankruptcy court for further proceedings was not final order immediately appealable to court of appeals, despite the fact that it resolved the only issue presented to district court)).
Mr. Byrnes's appeal of the bankruptcy court's entry of judgment dismissing the adversary proceeding remains pending in Case No. 2:22-cv-00426: any appeal to this court regarding the district court's disposition of Case No. 2:22-cv-00426 must be from the district court's entry of an appealable final order or judgment in that case. See, e.g., 28 U.S.C. § 158(d); Fed. R. App. P. 6(a).
For the foregoing reasons, this court lacks jurisdiction over this appeal.
APPEAL DISMISSED.