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In Re: Craig Azar v. Terry E. Smith

November 21, 2011

IN RE: CRAIG AZAR
CRAIG AZAR, APPELLANT,
v.
TERRY E. SMITH, TRUSTEE, APPELLEE.



ORDER

This cause comes before the Court on Debtor/Appellant Craig Azar's Motion for Leave to Appeal Interlocutory Order by Bankruptcy Court. (Doc. No. 1). Appellee opposes the motion.*fn1 (Doc. No. 2).

Pursuant to 28 U.S.C. § 158(a)(3), a district court has jurisdiction to hear an appeal of an interlocutory bankruptcy order if the district court grants leave to appeal. In such a situation, it is within the district court's discretion to grant or deny leave to appeal. See In re Laurent, 149 Fed. Appx. 833, 837 (11th Cir. 2005). Furthermore:

[T]he § 1292(b) requirements need not be satisfied when an interlocutory appeal is taken from the bankruptcy court to the district court.*fn2 In such a case, the district court's discretion to entertain an interlocutory appeal from the bankruptcy court is analogous to the court of appeals' discretion to entertain a Rule 23(f) appeal from the district court.

Chrysler Financial Corp. v. Powe, 312 F.3d 1241, 1245-46 (11th Cir. 2002); see also Laurent, 149 Fed. Appx. at 837.

The court of appeals' discretion to entertain a Rule 23(f) appeal is unfettered. Fed. R. Civ. P. 23(f) Advisory Committee Note to 2007 Amendments. "Permission to appeal [under Rule 23(f)] may be granted or denied on the basis of any consideration that the court of appeals finds persuasive." Fed. R. Civ. P. 23(f) Advisory Committee Note to 1998 Amendments; see also Jenkins v. Bellsouth Corp., 491 F.3d 1288, 1291. (11th Cir. 2007).

Upon review of the motion for leave to appeal, the bankruptcy court's order at issue, and the transcript of the bankruptcy court's September 26, 2011 hearing, this Court DENIES Azar's Motion for Leave to Appeal Interlocutory Order by Bankruptcy Court. (Doc. No. 1). The Clerk is directed to close this case.

Copies to: Counsel of Record The Honorable ...


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