In re: CONTINENTAL COIN CORPORATION v. Roger Virtue

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: CONTINENTAL COIN
CORPORATION,
Debtor.
NANCY HOFFMEIER ZAMORA,
Chapter 11 Trustee,
Appellant,
v.
ROGER VIRTUE,
Appellee.
No. 09-56507
D.C. No. 2:08-cv-00093-PA
MEMORANDUM*
In re: CONTINENTAL COIN
CORPORATION,
Debtor.
ROGER VIRTUE,
Cross - Appellant,
No. 09-56532
D.C. No. 2:08-cv-00093-PA
FILED
FEB 25 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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v.
NANCY HOFFMEIER ZAMORA,
Chapter 11 Trustee,
Cross - Appellee.
Appeals from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted February 15, 2011
Pasadena, California
Before: GOODWIN, KLEINFELD, and GRABER, Circuit Judges.
The parties separately appeal the district court’s affirmance of two orders of
the bankruptcy court pursuant to 28 U.S.C. § 158(d). Specifically, Appellant contests
the bankruptcy court’s order allowing an amended adversary complaint to be filed in
this matter. Cross-Appellant contests the bankruptcy court’s order barring certain
claims from the amended complaint, denying his request for appointment of counsel
under 11 U.S.C. § 327(a), and staying the adversary action pending appeal without
requiring a bond.
After an initial review of the matter, we issued an order to show cause why
these appeals should not be dismissed for lack of appellate jurisdiction, and both
parties filed responses. We review de novo our own jurisdiction and whether a
bankruptcy court’s decisions are final under 28 U.S.C. § 158(d). Silver Sage Partners,

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In response to our order to show cause, Appellee mistakenly relies upon1
decisions from the Bankruptcy Appellate Panel and district courts, whose
jurisdiction is broader than our own. See 28 U.S.C. § 158(a), (b).
We take no position as to the ongoing validity of this flexible approach to2
finality under § 158(d)(1). See Congrejo Invs., LLC v. Mann (In re Bender), 586
F.3d 1159, 1163–64 (9th Cir. 2009).
Ltd. v. City of Desert Hot Springs (In re City of Desert Hot Springs), 339 F.3d 782,
787 (9th Cir. 2003). We now dismiss for lack of appellate jurisdiction.
Under 28 U.S.C. § 158(d)(1), circuit courts have jurisdiction over appeals from
“all final decisions, judgments, orders, and decrees” entered by a district court on
appeal from a bankruptcy court. See Saxman v. Educ. Credit Mgmt. Corp. (In re1
Saxman), 325 F.3d 1168, 1171 (9th Cir. 2003); see also Ryther v. Lumber Products,
Inc. (In re Ryther), 799 F.2d 1412, 1414 (9th Cir. 1986) (“If the order of a bankruptcy
court is interlocutory, we have no jurisdiction to hear an appeal from the judgment of
the district court.”) (citing King v. Stanton (In re Stanton), 766 F.2d 1283, 1285 & n.5
(9th Cir. 1985) (order). Even under the flexible approach to finality previously
applied to bankruptcy court decisions in this circuit, we lack jurisdiction under §2
158(d)(1) because there is no final, conclusive decision at issue here, merely interim
ones. See Stanley v. Crossland, Crossland, Chambers, MacArthur & Lastreto (In re
Lakeshore Vill. Resort, Ltd.), 81 F.3d 103, 106 (9th Cir. 1996); In re Stanton, 766
F.2d at 1285–86.

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4
Creditor Roger Virtue still has leave to file an amended complaint subject to the
restrictions imposed by the bankruptcy court, and any legal errors affecting the
parties’ claims can be appealed after the conclusion of the adversary proceeding. See
WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (dismissal
of a complaint with leave to amend is not a final, appealable order). Further, the
collateral order doctrine does not apply here because no final decision has been made
regarding the Chapter 11 Trustee’s claim to immunity from Virtue’s potential
amended claims. See Mueller v. Auker, 576 F.3d 979, 987 (9th Cir. 2009); cf. Curry
v. Castillo (In Re Castillo), 297 F.3d 940, 946 (9th Cir. 2002) (holding that a
bankruptcy court order denying a trustee’s claim to immunity was final and appealable
under the collateral order doctrine). Indeed, we are in no position to rule on the
potential scope of the Trustee’s quasi-judicial immunity because it is wholly unclear
on the present record what specific acts are still at issue. See In Re Castillo, 297 F.3d
at 951 (noting that a determination of quasi-judicial immunity for a bankruptcy trustee
requires the examination of “the particular function” at issue).
APPEALS DISMISSED.

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