Jacobs v. Brain Power America Inc. (In Re Jacobs)

FILED 1 ORDERED PUBLISHED MAR 30 2015 2 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 6 In re: ) BAP Nos. NV-15-1048 ) NV-15-1064 7 DEBRA LEIGH JACOBS, ) (Cross-Appeals) ) 8 Debtor. ) Bk. No. 2:04-bk-19619-GS ) 9 ) DEBRA LEIGH JACOBS, ) 10 ) Appellant/ ) 11 Cross-Appellee, ) v. ) ORDER OVERRULING 12 ) UNTIMELY ELECTION BRAIN POWER AMERICA INC.; ) 13 JOHN W. MUIJE, ) ) 14 Appellees/ ) Cross-Appellants. ) 15 ) 16 Before: KIRSCHER, PAPPAS and DUNN, Bankruptcy Judges. 17 The Panel has received and considered the election filed by 18 Brain Power America, Inc., and John W. Muije to have BAP appeal 19 NV-15-1048 heard by the United States district court. Pursuant to 20 Fed. R. Bankr. P. 8005, the Panel has examined the election for 21 timeliness. 22 The deadline for a party to an appeal to file an election to 23 the U.S. district court is governed by 28 U.S.C. § 158(c). 24 [E]ach appeal . . . shall be heard by a 3-judge panel of the bankruptcy appellate panel service . . . unless--(A) 25 the appellant elects at the time of filing the appeal; or (B) any other party elects, not later than 30 days 26 after service of notice of the appeal; to have such appeal heard by the district court. 27 28 28 U.S.C. § 158(c)(1). 1 The debtor filed her notice of appeal on February 10, 2015, 2 and the appeal was referred to the BAP (appeal no. NV-15-1048). 3 On February 24, 2015, Brain Power America, Inc., and John W. Muije 4 filed their “notice of cross-appeal,” which was referred to the 5 BAP (appeal no. NV-15-1064). A cross-appeal briefing order was 6 issued in both appeals on February 25, 2015, superseding the 7 initial briefing order issued in NV-15-1048. 8 On March 5, 2015, in appeal no. NV-15-1048, Brain Power 9 America, Inc., and John W. Muije filed an election to have the 10 appeal heard at the U.S. district court. The election identifies 11 the electing parties as “Appellees/Cross-Appellants.” 12 Appellants and cross-appellants must file their election to 13 have an appeal heard at the U.S. district court at the time of 14 filing the notice of appeal or cross-appeal. 28 U.S.C. 15 § 158(c)(1)(a). Appellants and cross-appellants are not “other 16 parties” to an appeal or cross-appeal. See In re Snell, 237 B.R. 17 636, 638 (6th Cir. BAP 1999) (a cross-appellant must file its 18 election when filing its cross-appeal, it cannot wait until the 19 appellee election period expires in the main appeal). 20 We conclude appellees/cross-appellants’ election is untimely 21 and therefore it is OVERRULED. 22 23 24 25 26 27 28 -2-