ORTIZ

v.

HOWARD AVENUE STATION, LLC

This matter comes before the Court upon Appellee Frank R. Kane's Motion to Dismiss [Doc. 10], Plaintiff’s Response [Doc. 14], and Frank R. Kane’s Reply [Doc. 15].1 In the motion, Appellee argues that the appeal should be dismissed because it is untimely and because Appellant failed to comply with court orders, designate the record, and file an initial brief. The Court, having considered the motion and being fully advised in the premises, will grant Appellee Frank R. Kane's Motion to Dismiss.

I. BACKGROUND

Id. at pp. 5-6. Appellee Frank R. Kane has moved to dismiss this appeal on four grounds. [Doc. 10]. First, he argues that the filing of the appeal is more than four months too late as the order was docketed on May 14, 2020 and the time to appeal expired on May 28, 2020. Id. at pp. 1-2. He also argues that dismissal is warranted because Appellant

Motion for Clarification on May 27, 2020 and that the appeal was filed within fourteen-days of the court’s entry of an order on that motion. [Doc. 14 at pp. 5-6]. Among other arguments, Appellant contends that the remaining grounds for dismissal are without merit because Appellee could not prove the required standard of “bad faith, negligence or indifference,” which the Court must find before it can dismiss the appeal on those grounds. Id. at pp. 6-12. Appellee replies that the appeal is late because the Motion for Clarification did not “seek to amend or make additional findings under Rule 7052,” which is a requirement under Rule 8002(b)(1) for extending the time to appeal. [Doc. 15 at pp. 2-

3]. Appellee also presents argument on why the claimed reasons articulated by Appellant do not excuse dismissal of the appeal. Id. at pp. 3-6.

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 158(a), the United States District Court functions as an appellate court in reviewing decisions of the United States Bankruptcy Court. See In re

Williams, 216 F. 3d 1295, 1296 (11th Cir. 2000) (stating same). The district court’s jurisdiction covers “final judgments, orders, and decrees . . . entered in cases and proceedings referred to the bankruptcy judges.” Id. § 158(a)(1); Alderwoods Grp., Inc. v. Garcia, 682 F. 3d 958, 964 (11th Cir. 2012) (stating same). “A final decision is generally one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” In re Charter Co., 778 F. 2d 617, 621 (11th Cir. 1985) (quotations omitted). “[T]he separate dispute being assessed must have been finally resolved and leave nothing more for the bankruptcy court to do.” Id. Additionally, “with leave of the court,” an appeal may also lie “from other interlocutory orders and decrees.” 28 U.S.C. § 158(a)(3). Assuming that jurisdiction exists, the Federal Rules of Bankruptcy Procedure impose a number of obligations on a party seeking review of the decision of a bankruptcy court. First, “a notice of appeal must be filed with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree being appealed” except as provided by the Rules. Fed. R. Bankr. P. 8002. The appellant must then file with the bankruptcy clerk and serve on the appellee a designation of the items to be included in the record on appeal and a statement of the issues to be presented, within 14 days after (i) the notice of appeal as of right becomes effective under Rule 8002 or (ii) an order granting leave to appeal is entered. Fed. R. Bankr. P. 8009(a)(1). Next, “[t]he appellant must serve and file a brief within 30 days after the docketing of notice that the record has been transmitted or is available electronically.” Fed. R. Bankr. P. 8018(a)(1). The Rules further provide that “[i]f an appellant fails to file a brief on time or within an extended time authorized by the district court or BAP, an appellee may move to dismiss the appeal.” Fed. R. Bankr. P. 8018(4).

III. DISCUSSION

a. Jurisdiction “The federal district courts are courts of limited jurisdiction, ‘empowered to hear only those cases ... which have been entrusted to them by a jurisdictional grant authorized by Congress.’ ” Schiavo ex rel. Schindler v. Schiavo, 403 F. 3d 1223, 1231 (11th Cir. 2005) (quoting University of S. Ala. v. American Tobacco Co., 168 F. 3d 405, 409 (11th Cir.1999)). Pursuant to 28 U.S.C. § 158(a)(1) the district court’s jurisdiction over cases and proceedings referred to the bankruptcy judges extends to “final judgments, orders, and decrees” and the court also has discretion in hearing appeals of interlocutory orders pursuant to § 158(a)(3). The order on appeal sets forth the procedure to access a building that is involved in the bankruptcy proceeding. It did not end the litigation on the merits and it did not bring the proceeding to a point where the court was merely left to execute the judgment. In re Charter Co., 778 F. 2d at 621. As such, the Court cannot find that this order is a final order over which it has jurisdiction. Rather, the order appears to be interlocutory in nature. Because Appellant did not seek leave to appeal this order, it appears that jurisdiction is entirely lacking. 28 U.S.C. § 158(a)(3).3 b. Timeliness of Appeal

The Court agrees with Appellee Kane that the appeal is untimely. “The Supreme Court has emphasized that the timely filing of a notice of appeal is mandatory and jurisdictional. If the notice is not timely filed, the appellate court is without

Accordingly, it is hereby ORDERED: 1. Appellee Frank R. Kane's Motion to Dismiss [Doc. 10] is granted. This appeal is dismissed for lack of jurisdiction. 2. The Clerk is directed to terminate all pending motions and to close this case. DONE AND ORDERED in Tampa, Florida on July 30, 2021.

OC Ae Mies: Jarde Nor Ts pl el [...] Charlene Edwards Honeywell United States District Judge

Copies to: Counsel of Record and Unrepresented Parties, if any