Metropolitan Cooperative Association and Metropolitan Cooperative Association, Reorganized

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
METROPOLITAN COOPERATIVE
ASSOCIATION,
Debtor.
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)
)
)
)
)
Case No. 08-00527
(Chapter 11)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION RE
MOTION TO ENLARGE TIME TO FILE NOTICE OF APPEAL
William C. Johnson, Jr. has moved for leave to file out of
time a notice of appeal concerning two interlocutory rulings.
The motion will be denied.
The two interlocutory rulings decreed that M Y New
Hampshire, LLC (“MYNH”) is entitled to recover a monetary award
against Johnson for sanctions based on the failure of Johnson to
notify MYNH’s counsel that Johnson’s client, the debtor
(“Metropolitan”), would not appear for deposition through the
individual it designated under Fed. R. Civ. P. 36(b)(2) to
testify on its behalf.
Johnson filed a notice of appeal on August 18, 2009, from
the two rulings:
• 	the Memorandum Decision and Order re Motion for
The document below is hereby signed.
Signed: October 06, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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Sanctions (Dkt. No. 274), and
• 	the Memorandum Decision and Order (Dkt. No. 297)
denying Johnson’s motion (Dkt. No. 278) seeking
reconsideration of the first ruling.
These two rulings regarding sanctions are both non-final orders,
reviewable if at all via an interlocutory appeal, because the
court has not yet fixed the amount of sanctions to be awarded.
The term "final decision" means a decision that "'ends the
litigation on the merits and leaves nothing more for the court to
do but execute the judgment.'" Digital Equipment Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 867 (1994), and Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467 (1978) (both quoting Catlin v. United
States, 324 U.S. 229, 233 (1945)). 	See Deloach v. Delchamps,
Inc., 897 F.2d 815, 826 (5th Cir. 1990) (“Because a judgment is
not final until both liability and damages are determined, a
judgment awarding an unspecified amount of attorney's fees is
interlocutory in nature.”). 	Cf. Fed. R. Civ. P. 54(b), made
applicable by Fed. R. Bankr. P. 9014 and 7054. 	The rulings here
did not fix the amount of money due MYNH or a formula by which
that amount could be computed in mechanical fashion, and thus
were not final judgments. 	United States v. F. & M. Schaefer
Brewing Co., 356 U.S. 227 (1958). 	Accordingly, the two rulings
did not end the contested matter as to any of the claims
addressed, and Johnson will have an adequate opportunity to
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appeal from a final order adjudicating the amount of sanctions to
be awarded.
On August 30, 2009, Johnson filed his motion (Dkt. No. 317)
seeking leave to file out of time the notice of appeal from the
two interim rulings. 	That motion will be denied.
I
The motion will be denied as unnecessary with respect to the
court’s initial ruling. 	Because the court’s order was not set
forth on a separate document, the order would not be deemed to
have been entered for appeal purposes until 150 days after entry
of the ruling on the docket. 	See Fed. R. Bankr. P. 9021 and Fed.
R. Civ. P. 58(b)(2)(B). 	The time to appeal the initial ruling
was not shortened by the court’s entry of the second ruling, an
order (appealable within 10 days of entry) denying Johnson’s
motion to reconsider. 	See ABF Capital Corp. v. Osley, 414 F.3d
1061, 1064-65 (9th Cir. 2005). 	Accordingly, the notice of appeal
from the initial ruling is timely.
II
The motion to enlarge time presents as well an issue of
whether the notice of appeal was timely as to the court’s second
ruling (the order denying the motion to reconsider). 	Ultimately,
however, that issue is academic.
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1 	It could be argued that until the earlier ruling is
deemed to have been “entered,” the Rule 59 motion was premature,
see ABF Capital Corp. v. Osley, 414 F.3d at 1064-65, and that the
motion did not ripen into a Rule 59 motion, and the order denying
it did not ripen into an order denying a Rule 59 motion, until
the initial ruling is deemed “entered.” 	But Rule 59 does not
forbid the filing of such a motion before the judgment sought to
be revised is deemed to have been “entered” under Rule 58(c).
Treating the Rule 59 motion as “premature” just means that it was
filed before the 10-day deadline for filing the motion began to
run. 	It does not mean the motion was not a Rule 59 motion from
the get-go.
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A.
The notice of appeal arguably was untimely. 	The motion to
reconsider the court’s first ruling was filed within 10 days
after the clerk’s docketing of that first ruling, and would be
treated as a motion under Fed. R. Civ. P. even though filed in
advance of the date on which the order sought to be revised will
be deemed to have been “entered.” 1 	By reason of Fed. R. Civ. P.
58(a)(4) (made applicable by Fed. R. Bankr. P. 9021), the second
ruling (which denied the motion for reconsideration) was deemed
“entered” for purposes of the Federal Rules of Bankruptcy
Procedure when the clerk entered the ruling on the docket,
without the necessity of the ruling being set forth on a separate
document. 	Once an order is “entered,” the 10-day period for
appeal of that order begins to run. 	Fed. R. Bankr. P. 8002(a).
If Johnson wanted to pursue an interlocutory appeal of the order
denying the motion for reconsideration, then under this view the
appeal was untimely.
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It might be argued, however, that an appeal of an order
denying a motion to reconsider an earlier order, as in this case,
is not ripe until the earlier order has been entered on a
separate document or entered by passage of time pursuant to the
150-day rule of Fed. R. Civ. P. 58(b)(2)(B). 	See Med. Supply
Chain, Inc. v. Neoforma, Inc., 508 F.3d 572, 575 (10th Cir.
2007). 	This makes sense when a final judgment disposing of the
litigation is required before an appeal can be prosecuted, and
the initial judgment (which would constitute a final judgment
upon being entered) has not yet been “entered” under Rule 58(c).
In that circumstance, there is nothing to be appealed until the
initial judgment is entered as the final judgment. 	Stated
differently, the final judgment, once entered, could be deemed to
have subsumed all prior orders entered in the matter, such that
the prior orders that were entered are not ripe for an appeal
until the final judgment is entered.
But the orders at issue here are both interlocutory orders,
and no finality was required for Johnson to pursue an
interlocutory appeal of the second ruling, the order denying his
motion to reconsider. 	That order was ripe for an interlocutory
appeal once it was entered. 	Moreover, Rule 8002 treats appeal of
the initial judgment as distinct from appeal of the order denying
a Rule 59 motion: Rule 8002 provides in relevant part that
“[a]ppellate review of an order disposing of [a Rule 59 motion]
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requires the party, in compliance with Rule 8001, to amend a
previously filed notice of appeal.” 	It bears repeating that once
a final judgment fixing the amount of fees to be recovered from
Johnson is entered, Johnson can appeal that final judgment and
raise on appeal any error in the court’s second ruling (the
interlocutory order denying his motion for reconsideration).
B.
But I need not decide whether the appeal of the second
ruling was untimely. 	The issue of timeliness will be one for the
District Court, but whatever the District Court decides will not
affect the outcome of the motion for an enlargement of time to
appeal the second ruling. 	If the notice of appeal was timely as
to the second ruling, the motion to enlarge time is unnecessary.
If, instead, the notice of appeal was untimely as to the second
ruling, an enlargement of time would gain Johnson nothing that he
has not already gained by reason of the timeliness of his notice
of appeal from the initial ruling.
Treating the notice of appeal from the initial ruling as
timely moots the issue of leave to appeal the second ruling
(denying the motion for reconsideration) because, in appealing
the initial ruling, Johnson will be free to advance all of the
arguments he raised in support of his motion for reconsideration.
His motion for reconsideration did not advance any new argument
or present new evidence, and, instead, attempted to convince this
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court that there was error in the court’s initial ruling.
Accordingly, I will deny the motion to enlarge time as
unnecessary, either because the appeal is timely, or, if the
appeal was untimely, because the timely appeal of the first
ruling would allow Johnson to advance all of the arguments he
raised in support of the motion to reconsider that was the
subject of the second ruling.
III
Even if (1) the appeal of the second ruling is untimely and
(2) an appeal of the second ruling were necessary in order to
raise on appeal the arguments rejected by the second ruling, the
motion will be denied as to the appeal of the second ruling
because Johnson has not demonstrated that there is excusable
neglect warranting granting leave to pursue an interlocutory
appeal out of time. 	(This applies as well to the appeal of the
first ruling if I am wrong--in part I, above--in treating the
notice of appeal as timely as to the first ruling.)
In deciding whether to permit an appeal out of time, based
on excusable neglect, the prejudice to the parties and to the
court is an important consideration. 	See Pincay v. Andrews, 389
F.3d 853, 855, 859 (9th Cir. 2004) (en banc) (in deciding whether
to find excusable neglect, court may consider the likelihood of
injustice if the appeal is not allowed). 	Here, there will be no
prejudice to Johnson as he can appeal once the court enters a
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final order fixing the amount of damages. 	The court has set a
hearing to fix the amount of damages, and that should lead to
entry of a final appealable judgment long before the district
court addresses whether to allow an interlocutory appeal and, if
an interlocutory appeal were allowed, a record for purposes of
the interlocutory appeal is designated and transmitted to the
district court.
In any event, an interlocutory appeal would result in
piecemeal adjudication of the dispute, and it is highly unlikely
that the district court would exercise its discretion to grant
leave to pursue an interlocutory appeal. 	In this regard, Johnson
does not proffer any reason why the district court ought to allow
an interlocutory appeal: indeed, he mistakenly views the rulings
he seeks to appeal as being final orders.
Johnson has shown no prejudice that would result to him from
a denial of leave to appeal out of time, and although under
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507
U.S. 380 (1993), there are other factors that bear on the issue
of excusable neglect, they are outweighed in the circumstances of
this case by the lack of any prejudice to Johnson.
Johnson makes a conclusory proffer that he was too ill to
file a timely notice of interlocutory appeal. 	Taking time for
the trial and adjudication of that issue would be pointless and
wasteful if Johnson would gain nothing by being allowed out of
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9	O:\TEEL\Judge Temp Docs\Metropolitan Coop Assocn - Mem Decsn re Mtn to to Enlarge Time for Appeal_v3.wpd
time to take an interlocutory appeal.
IV
An order follows denying Johnson’s motion.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Office of United States
Trustee; Paul M. Nussbaum, Esq.; Brent C. Strickland, Esq.; Aryeh
E. Stein, Esq.; Nelson Cohen.
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