United States District Court, D. Nevada
In re LINDA L. GARMONG, Debtor.
MAUPIN, COX & LEGOY, Appellee. GREGORY O. GARMONG, Appellant,
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE.
bankruptcy appeal, the United States Bankruptcy Court for the
District of Nevada denied Appellant Gregory O. Garmong's
Motion to Remand, Motion to Abstain and Motion for
Attorneys' Fees and Costs (“Motion to
Remand”). (ECF No. 1 at 14-18 (“Order on
Remand”)). Appellant now seeks leave to appeal the
interlocutory Order on Remand. (Id. at 18-32
(“Motion for Leave to Appeal”).) The Court will
deny the Motion for Leave to Appeal (“Motion”)
and concludes that it therefore lacks appellate jurisdiction.
matter originated in a Chapter 7 bankruptcy case commenced by
Appellant's ex-wife, Linda Garmong. In re
Garmong, No. 3:10-bk-52588-GWZ (Bankr. D. Nev.June 30,
2010), ECF No. 1. Appellant retained Appellee, the law firm
of Maupin, Cox & LeGoy (“MCL”), to represent
Appellant in the bankruptcy case. In re Garmong, ECF
Nos. 15, 23. Appellant's counsel filed a motion to
withdraw and requested that the motion be scheduled for a
hearing on shortened time. In re Garmong, ECF Nos.
254, 256. The bankruptcy court granted the motion and
scheduled the hearing for December 2, 2014. In re
Garmong, ECF No. 259. After a contentious exchange, the
parties entered into a settlement agreement on the day of the
hearing, which the bankruptcy court approved. In re
Garmong, ECF No. 282 at 9. Appellant agreed to release
his claims against MCL in exchange for the firm's
agreement to waive all fees due as of December 2, 2014 and
for its commitment to update Appellant's new counsel on
the bankruptcy case (“Settlement Order”). In
re Garmong, ECF No. 282 at 16.
November 13, 2017, as the underlying bankruptcy case was
pending, Appellant filed a complaint against MCL in the
Second Judicial District Court of the State of Nevada
(“Adversary Proceeding”). (ECF No. 1 at 45-58.)
The Complaint alleges that MCL violated an array of
Appellant's rights when it abandoned him mid-litigation.
(Id. at 53-57.) MCL filed an answer and asserted
affirmative defenses essentially arguing that the Settlement
Order barred Appellant's claims. (Id. at 76-78.)
On December 6, 2017, MCL removed the Adversary Proceeding to
the bankruptcy court. Garmong v. Maupin, Cox and
LeGoy (“MCL”), Adv. No.
17-05043-GWZ (Bankr. D. Nev. Dec. 6, 2017), ECF No.
On January 5, 2018, Appellant filed the motion to remand for
lack of subject matter jurisdiction and for mandatory
abstention. MCL, ECF No. 4. The bankruptcy court
denied the motion on February 1, 2019 in an Order on Remand,
holding that the bankruptcy court had ancillary jurisdiction
and “perhaps related to jurisdiction.” (ECF
No. 1 at 65-68.) On February 14, 2019, Appellant
timely filed the current Motion to the Bankruptcy Appellate
Panel. (ECF No. 1 at 9-36). See MCL, ECF
Nos. 36, 38. On February 25, 2019, MCL timely elected to have
this Court decide the Motion instead. (ECF No. 1 at
meantime, on February 7, 2019, Appellee filed a motion to
enforce the Settlement Order (“Motion to
Enforce”) in the Adversary Proceeding. MCL,
ECF No. 25. On July 30, 2019, the bankruptcy court entered
findings of fact and conclusion on the Motion to Enforce (the
“Findings”), concluding that the bankruptcy court
had ancillary jurisdiction to review the Settlement Order.
MCL, ECF No. 84 at 8-12. On that same day, the
bankruptcy court entered an Order Granting Motion to Enforce
that dismissed the Adversary Proceeding with prejudice.
MCL, ECF No. 85 at 2. On August 14, 2019, Appellant
appealed the final order to another district court
(“Second Appeal”) and argued inter alia
that the bankruptcy court never addressed the abstention
issue in the Order on Remand, Order Granting Motion to
Enforce, nor the Findings. Garmong v. Maupin, Cox &
Legoy, Adv. No. 3:19-cv-00490-RCJ (D. Nev. Aug. 14,
2019), ECF No. 9 at 20, 40-42.
over an appeal from an order of a bankruptcy court is
governed by 28 U.S.C. § 158.” In re Frontier
Props., Inc., 979 F.2d 1358, 1362 (9th Cir. 1992).
Section 158 vests district courts with appellate jurisdiction
over three categories of bankruptcy court orders: (1)
“final judgments, orders, and decrees”; (2)
“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)
other interlocutory orders and decrees “with leave of
the court.” 28 U.S.C. § 158(a)(1)-(3). Because the
Federal Rules of Bankruptcy do not provide standards for
determining when leave to appeal an interlocutory order
should be granted, courts generally borrow the standards of
28 U.S.C. § 1292(b). In re Rivas, No.
2:10-bk-37603-VZ, 2011 WL 6888662, at *2 (C.D. Cal. Sept. 15,
2011); see also Bank of New York Mellon v. Watt
(Watt), 867 F.3d 1155, 1159 (9th Cir. 2017). Thus,
to obtain review of an interlocutory order, an appellant must
demonstrate that (1) the order involves a controlling
question of law (2) as to which there is a substantial ground
for difference of opinion, and that (3) an immediate appeal
from the order may materially advance the ultimate
termination of the litigation. 28 U.S.C. § 1292(b);
see also Watt, 867 F.3d at 1159; Oliner v.
Kontrabecki, 305 B.R. 510, 527 (N.D. Cal. 2004). The
party pursuing the interlocutory appeal bears the burden of
demonstrating that the statutory requirements are met.
McDonnell v. Riley, No. 15-CV-01832-BLF, 2016 WL
613430, at *4 (N.D. Cal. Feb. 16, 2016) (citing to Couch
v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010)).
appeals are generally disfavored and should only be granted
where extraordinary circumstances exist. In re
Cameron, No. C 13-02018 SI, 2014 WL 1028436, at *4 (N.D.
Cal. Mar. 17, 2014) (citations omitted); see also Siegler
v. Sorrento Therapeutics, Inc., No.
3:18-cv-1681-GPC-NLS, 2019 WL 2549248, at *2 (S.D. Cal. June
20, 2019) (“Section 1292(b) was not intended to open
the floodgates to a vast number of appeals from interlocutory
orders in ordinary litigation.”) (citation and internal
Motion seeks leave to appeal the interlocutory Order on
Remand for two central reasons that appear to go to the
merits of the appeal-the bankruptcy court lacked subject
matter jurisdiction and should have abstained. (ECF No. 1 at
18-19.) But the Court declines to address the merits of the
bankruptcy court's rulings because, as explained further
below, the Court denies the Motion and thus does not have
appellate jurisdiction over either issue.
has failed to prove the first two prongs for granting
interlocutory appeal to give this Court appellate
jurisdiction. First, Appellant has not demonstrated a
controlling question of law, which “means a ‘pure
question of law' rather than a mixed question of law and
fact or the application of law to a particular set of
facts.” Halloum, 2015 WL 4512599, at *2
(citation omitted). Here, Appellant only argues the
merits-that the bankruptcy court has misapplied the law of
ancillary jurisdiction to the current case. (ECF No. 1 at
27-28.) See Halloum v. McCormick Barstow LLP, No.
C-15-2181 EMC, 2015 WL 4512599 at *3 (N.D. Cal. July 24,
2015) (holding that there is no controlling question of law
where an appellant is merely arguing that the bankruptcy
court misapplied settled law); Siegler v. Sorrento
Therapeutics, Inc., No. 3:18-cv-1681-GPC-NLS, 2019 WL
2549248, at *2 (S.D. Cal. June 20, 2019) (same). Accordingly,
Appellant has not satisfied the first prong for finding
appellate jurisdiction here.
Appellant argues that “[t]here is a substantial
difference of opinion between Appellant, on the one hand, and
the [b]ankruptcy [c]ourt and [Appellees] on the other, as to
the [b]ankruptcy [c]ourt's subject-matter jurisdiction
here.” (ECF No. 1 at 10.) But Appellant relies on an
incorrect legal standard-mere disagreement with a lower
court's decision or another party's legal
interpretation does not constitute a “difference of
opinion” under 28 U.S.C. §§ 158(a)(3) or
1292(b). See McDonnell v. Riley, No.
15-cv-01832-BLF, 2016 WL 613430, at *5 (N.D. Cal. Feb. 16,
2016) (“Simply disagreeing . . . with a court's
ruling, is not sufficient for there to be a substantial
ground for difference of opinion.”); Williston v.
Eggleston, 410 F.Supp.2d 274, 277 (S.D.N.Y. 2006)
(holding that mere disagreement among the parties does not
constitute a difference of opinion); McDonnell v.
Riley, No. 15-cv-01832-BLF, 2016 WL 613430, at *5 (N.D.
Cal. Feb. 16, 2016) (“[J]ust because counsel contends
that one precedent rather than another is controlling does
not mean there is such a substantial difference of opinion as
will support an interlocutory appeal.”) Instead,
substantial grounds for difference of opinion exist where
reasonable jurists might disagree on an issue's
resolution, Reese v. BP Exploration (Alaska) Inc.,
643 F.3d 681, 687-88 (9th Cir. 2011), or where ...