United States District Court, S.D. Florida
Appeal
from the United States Bankruptcy Court for the Southern
District of Florida (BKC Docket No. 17-16113-RAM)
ORDER DISMISSING APPEAL FOR LACK OF
JURISDICTION
Robert
N. Scola, Jr. United States District Judge.
This
matter is before the Court on the Appellants MMX
Mineração e Metalicos S.A. (“MMX”),
Centennial Asset Mining Fund, LLC, and Eike Batista's
(collectively, “Appellants”) appeal of the
Bankruptcy Court's Order Denying Objection to Recognition
and Motion to Dismiss Chapter 15 Case. (See Notice
of Appeal, ECF No. 1). After reviewing the parties'
briefs, the record on appeal, the relevant legal authorities,
and for the reasons explained below, the Court
dismisses this appeal for lack of
jurisdiction.
The
foreign debtor, MMX Sudeste Mineração S.A. (the
“Debtor”), through its duly appointed judicial
administrator, Bernardo Bicalho Alvarenga Mendes
(“Trustee”), commenced a proceeding for
recognition of a foreign proceeding under Chapter 15 of the
Bankruptcy Code, 11 U.S.C. §§ 1501-1532, which the
bankruptcy court granted. (See BKC ECF No. 9.) The
Appellant MMX, the parent company of the Debtor, filed an
objection to the order of recognition and a motion to
dismiss, arguing that a debtor under Chapter 15 must meet the
requirements under 11 U.S.C. § 109(a), relying upon the
court's decision in In re Barnet, 737 F.3d 238
(2d Cir. 2013). The bankruptcy court denied the motion to
dismiss, stating in its order that it “declines to
apply the holding of In re Barnet, that an entity
that is the subject of a foreign proceeding must have
property in the United States to have the foreign proceeding
recognized under Chapter 15.” (See Order, BKC
ECF No. 33 at 2.) Thereafter, the Appellants filed a notice
of appeal of the bankruptcy court's Order. (See
BKC ECF No. 44.)
Pursuant
to 28 U.S.C. § 158(a), the district courts have
jurisdiction to hear appeals from final judgments and orders,
and interlocutory orders of the bankruptcy judges, with prior
leave of court. 28 U.S.C. § 158(a)(1), (3). The
Appellants did not seek leave to appeal; rather they assert
that the Court has jurisdiction pursuant to § 158(a)(1).
Although the parties do not appear to dispute that this Court
has jurisdiction, the Court is obligated to consider
jurisdiction “even if it means raising the issue
sua sponte.” In re Donovan, 532 F.3d
1134, 1136 (11th Cir. 2008) (citing AT&T Mobility,
LLC v. Nat'l Ass'n for Stock Car Auto Racing,
Inc., 494 F.3d 1356, 1359 (11th Cir. 2007)).
The
Appellants contend that the bankruptcy Order is a final
appealable order under the flexible interpretation of
finality in the context of bankruptcy appeals.[1] However, upon
review, the Court disagrees.
While
the Appellants are correct that finality is a more flexible
concept in bankruptcy, the increased flexibility “does
not render appealable an order which does not finally dispose
of a claim or adversary proceeding.” In re
Donovan, 532 F.3d at 1136. Indeed, to be final, “a
bankruptcy court order must completely resolve all of the
issues pertaining to a discrete claim, including issues as to
the proper relief.” Id. at 1136-37 (quoting
In re Atlas, 210 F.3d 1305, 1308 (11th Cir. 2000))
(internal quotations omitted). Generally, an order denying a
motion to dismiss is not a final appealable order. The
Appellants nonetheless contend that the Order completely
resolves the dispute between the parties on a fundamental and
discrete issue of law. (See ECF No. 9 at 9 n.3.)
However, the same could be argued with respect to virtually
any order denying a motion to dismiss, as many involve
discrete issues of law the determination of which affects the
continuation of a case. Furthermore, the Court declines
Appellants' urging the Court to apply the same concepts
applied in In re Dolan, 550 B.R. 582, 588 (S.D. Fla.
2016) (Middlebrooks, J.), as the orders appealed in In re
Dolan completely resolved the dispute between the
parties and left the bankruptcy court with nothing further to
do. Such is not the case here, where the bankruptcy
proceedings continue. As a result, the Court does not view
the Order as a final appealable order under 28 U.S.C. §
158(a)(1).
Accordingly,
the Court dismisses this appeal for lack of
jurisdiction. The oral argument scheduled for April 24, 2018
is canceled, and the Clerk of Court is directed to
close this case.
Done
and ordered at Miami, Florida, on April 2, 2018.
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Notes:
[1] The Appellees do not address the issue
of jurisdiction in their response brief, thus the Court
assumes their agreement with the Appellants'
...