United States v. 2009-05-28 | 08-80165 | WESTERN AIRCRAFT, INC. V. JAMES LISOWSKI, SR. | precedential…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 In re: SILVER STATE HELICOPTERS,
LLC. No. 08-80165
D.C. No.
WESTERN AIRCRAFT, INC., 08-cv-1397-RLH
Petitioner, B. Ct. No.
08-10936-MKNv.
ORDERJAMES F. LISOWSKI, SR.,
Trustee-Respondent. 
On Petition for Permission to Appeal
Pursuant to 28 U.S.C. § 158(d)(2)
Submitted February 23, 2009
Filed May 28, 2009
Before: Alex Kozinski, Chief Judge, and
Michael Daly Hawkins, Circuit Judge.
COUNSEL
Matthew C. Zirzow and Gerald M. Gordon, Gordon & Silver
Ltd., Las Vegas, Nevada; Jerry Hall, Jr. and Patrick Potter,
Pillsbury Wintrop Shaw Pitman LLP, Washington, D.C., for
the petitioner.
Victoria Nelson and Ogonna M. Atamoh, Santoro Driggs
Walch Kearney Johnson & Thompson, Las Vegas, Nevada,
for the trustee-respondent.
6329

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ORDER
In the instant case, Western Aircraft (“Western”) leased
commercial real estate to Silver State Helicopters (“Silver
State”). Silver State later filed for Chapter 7 bankruptcy relief.
After the trustee was appointed, Western demanded that the
trustee pay the rent that had accrued under the lease for the
first 60 days following Silver State’s filing of the bankruptcy
petition. The trustee failed to pay the rent. Western moved the
bankruptcy court for an order requiring the rental payment.
See 11 U.S.C. § 365(d)(3). The bankruptcy court denied
Western’s motion, reasoning that the timing of performance
under section 365(d)(3) is within the discretion of the bank-
ruptcy court.
The bankruptcy court has certified for appeal the question
whether section 365(d)(3) requires the immediate payment of
accrued rent.
Because we conclude the order at issue is fully within the
discretion of the bankruptcy court, and resolution of the
underlying issue (whether section 365(d)(3) requires the
immediate payment of accrued rent) is unlikely to have a sub-
stantial impact on the ongoing proceedings, the petition for
permission to appeal pursuant to 28 U.S.C. § 158(d)(2) is
denied.
6330 IN RE SILVER STATE HELICOPTERS

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