In the
United States Court of Appeals
For the Seventh Circuit
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No. 16‐1389
IN RE: CENTRAL ILLINOIS ENERGY COOPERATIVE,
Debtor,
A. CLAY COX,
Trustee‐Appellant,
v.
NOSTAW, INC.,
Appellee.
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Appeal from the United States District Court for the
Central District of Illinois.
No. 15‐1118 — James E. Shadid, Chief Judge.
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ON MOTION TO DISMISS AND REMAND
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FEBRUARY 8, 2017
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RIPPLE, Circuit Judge (in chambers). Appellant A. Clay Cox,
the bankruptcy trustee for Central Illinois Energy Coopera‐
tive, asks this court to dismiss his appeal and remand in light
2 No. 16‐1389
of the bankruptcy court’s statement that it would approve a
settlement between the parties.
After mediation the parties agreed to settle this case, but
the settlement is contingent on approval by the bankruptcy
court. The parties filed a joint motion in the bankruptcy court
asking for an indicative ruling whether it would approve their
proposed settlement. On November 7, 2016, the bankruptcy
court issued an order saying that it would approve the settle‐
ment agreement, subject to the disposition of any objection
filed by a creditor or the trustee, if the case was remanded for
that purpose. In light of this order, Mr. Cox moves this court
pursuant to Federal Rule of Appellate Procedure 12.1 to dis‐
miss his appeal and remand to the district court with instruc‐
tions to remand to the bankruptcy court for proceedings con‐
sistent with its indicative ruling.
Rule 12.1 provides that if a district court says it would
grant a motion that is barred by a pending appeal, “the court
of appeals may remand for further proceedings but retains ju‐
risdiction unless it expressly dismisses the appeal.” This
court’s Circuit Rule 57 provides similar relief, but says that
this court “will remand” if the district court is inclined to
modify its judgment. See Boyko v. Anderson, 185 F.3d 672 (7th
Cir. 1999). These rules allow for coordination of proceedings
between a district court and a court of appeals. See FED. R. APP.
P. 12.1 advisory committee’s note (2009).
When, as in this case, an appeal is from the district court’s
affirmance of a bankruptcy court order, a remand to the bank‐
ruptcy court for approval of settlement requires coordination
between three courts. Further, Rule 12.1 and Rule 57 both au‐
thorize relief only after the district court has said that it is in‐
No. 16‐1389 3
clined to grant a motion barred by the pending appeal. Alt‐
hough the parties obtained an indicative ruling from the
bankruptcy court, there is no record that they sought or ob‐
tained an indicative ruling from the district court.
To ensure that each of the coordinating courts agree, the
proper procedure when asking this court to remand to the
district court and then to the bankruptcy court is to obtain an
indicative ruling from both courts that will need to act. Be‐
cause Mr. Cox has not done this, his motion is DENIED with‐
out prejudice to renewal after obtaining an indicative ruling
from the district court.
A. Clay Cox v. Nostaw, Inc.
Combined Opinion