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Rivas v. Weisbart

United States District Court, E.D. Texas

October 28, 2019

RUDY RIVAS, et al., Appellants,
v.
MARK A. WEISBART, as the Trustee, Appellee.

          MEMORANDUM AND ORDER

          MARCIA A. CRONE UNITED STATES DISTRICT JUDGE

         Pending before the court are Appellants Rudy Rivas, Legacy Manor II, LLC, R. Rivas Family Partnership LP, Artisan DFW Custom Pools, LLC, Christopher's Classic Cars, LLC, Christopher Diversified Solutions, LLC, Lucas Corners, LLC, M. Christopher Construction, LLC, M. Christopher Custom Pools, LLC, M. Christopher Investments 2015, LLC, M. Christopher Limited, LLC, M. Christopher Real Estate, LLC, MCCH 2009, LLC, MCCH Holdings, LLC, MCCP, LLC, Nortex Septic Systems, LLC, R. Rivas Enterprises, LLC, Rivas Properties, LLC, Artisan DFW Custom Homes Group, LLC, Artisan Construction DFW, LLC, Green Dream Outdoors, LLC, M. Christopher Custom Homes, LLC, M. Christopher Investments, LLC 2011, M. Christopher Residential, LLC, MCCH Industries, LLC, Metroplex Royal Flush, LLC, Catherine Ann Rivas, James C. Rivas, Richard M. Rivas, Andy Rivas, and Laura Rivas's collectively, “Appellants”) Notice of Appeal (#1) and Motion for Leave to File an Interlocutory Appeal (#1-3), wherein Appellants contend that the bankruptcy court erred in denying their First Amended Motion to Dismiss the Trustee's Second Amended Complaint and Motion to Strike, which seeks dismissal of the claims asserted by Appellee Bankruptcy Trustee Mark A. Weisbart (“Weisbart”). Having considered the motions, the record, and the applicable law, the court is of the opinion that leave should be denied and the appeal should be dismissed for lack of subject matter jurisdiction.

         I. Analysis

         The statutory authority for this court's appellate jurisdiction in bankruptcy cases is found in 28 U.S.C. § 158, which reads as follows:

(a) The district courts of the United States shall have jurisdiction to hear appeals
(1) from final judgments, orders, and decrees;
(2) from interlocutory orders and decrees issued under section 1121(d) of title 11 increasing or reducing the time periods referred to in section 1121 of such title; and
(3) with leave of the court, from other interlocutory orders and decrees; of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title. An appeal under this subsection shall be taken only to the district court for the judicial district in which the bankruptcy judge is serving.

         Appellants contend that jurisdiction exists pursuant to § 158(a)(3). Section 158(a)(3) must be considered in conjunction with Federal Rule of Bankruptcy Procedure 8004, which states:

(a) Notice of appeal and motion for leave to appeal
To appeal from an interlocutory order or decree of a bankruptcy court under 28 U.S.C. § 158(a)(3), a party must file with the bankruptcy clerk a notice of appeal as prescribed by Rule 8003(a). The notice must:
(1) be filed within the time allowed by Rule 8002;
(2) be accompanied by a motion for leave to appeal prepared in accordance with subdivision (b); and
(3) unless served electronically using the court's transmission equipment, include proof of service in ...

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