Case: 17-50319 Document: 00514221808 Page: 1 Date Filed: 11/02/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 17-50319 November 2, 2017
Summary Calendar Lyle W. Cayce
Clerk
In The Matter of: JOE JESSE MONGE; ROSANA ELENA MONGE
Debtor
-------------------------
LAW OFFICES OF MICHAEL R. NEVAREZ, A Professional Corporation,
doing business as The Nevarez Law Firm, P.C.,
Appellant
v.
JOE JESSE MONGE; ROSANA ELENA MONGE,
Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:16-CV-525
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: ∗
Joe and Rosana Monge engaged the Law Offices of Michael R. Nevarez
(“Nevarez”) to pursue various qui tam actions. Eventually, the Monges ran out
∗
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-50319
of money and declared bankruptcy. Nevarez sued the Monges for unpaid legal
bills. Upon discovering that Nevarez continued pursuing the qui tam actions
without the Monges’ knowledge or consent, the Monges countersued in
bankruptcy court and argued, inter alia, that Nevarez’s actions violated the
automatic bankruptcy stay.
Nevarez argued that their retainer agreement required arbitration of all
of the Monges’ claims. The bankruptcy court largely agreed, except as to the
Monges’ claim that Nevarez’s continued pursuit of the qui tam actions violated
the automatic bankruptcy stay. The bankruptcy court issued three orders to
that effect. In one of those orders, the bankruptcy court decided that the
Monges’ claim that Nevarez’s continued pursuit of the qui tam actions was not
arbitrable. Accordingly, the bankruptcy court denied Nevarez’s motion to stay
pending arbitration.
Nevarez appealed these three orders to the district court. Before the
district court ruled on that appeal, however, the bankruptcy court issued a
final judgment on all issues between the Monges and Nevarez. Nevarez
appealed the final judgment to the district court in a separate action. Thus,
there were two actions with nearly identical claims before the district court.
The district court exercised its discretion under Federal Rule of
Bankruptcy Procedure 8003(b)(2) to consolidate the two lawsuits, and then it
dismissed the appeal containing the three interlocutory orders and rendered
final judgment in that action. The district court stated it intended to consider
those interlocutory orders in the separate action with the final judgment,
which remains pending. Nevarez appealed the dismissed action to this court.
The Monges moved to dismiss the appeal before this court because the
district court has not yet had an opportunity to rule on the merits of the issues.
Nevarez contends that the bankruptcy court’s decision to decline staying the
case until arbitration occurred, though interlocutory in nature, was appealable
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No. 17-50319
in light of section 16 of the Federal Arbitration Act. 9 U.S.C. § 16(a)(1)(A); see
In re Nat’l Gypsum Co., 118 F.3d 1056, 1061 (5th Cir. 1997). Because the
district court rendered final judgment in the action with the three interlocutory
orders after consolidating the appeals, Nevarez contends dismissal is
inappropriate here.
Although Nevarez is correct that a bankruptcy court’s decision to deny a
motion to stay is appealable and the district court here rendered final
judgment, the district court has not had an opportunity to consider these issues
because it consolidated the cases. Dismissal is consistent with the statutory
scheme of district court appellate review of bankruptcy decisions that occurs
except in narrow and statutorily specified circumstances—none of which
applies here. See 28 U.S.C. § 158(d)(2)(A). Because dismissal is appropriate,
Nevarez’s motion for sanctions fails.
IT IS ORDERED that appellees’ opposed motion to dismiss appeal is
GRANTED.
IT IS FURTHER ORDERED that appellant’s motion for sanctions is
DENIED.
IT IS FURTHER ORDERED that appellant’s motion to supplement the
record is DENIED.
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