FILED
NOT FOR PUBLICATION
JAN 10 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: CAPITAL OPTIONS, LLC, No. 16-60053
Debtor, BAP No. 15-1166
_______________________
MEMORANDUM*
CAPITAL OPTIONS, LLC,
Appellant,
v.
C. DENNIS LOOMIS; et al.,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kurtz, Jury, and Jaime, Bankruptcy Judges, Presiding
Argued and Submitted October 17, 2017
San Francisco, California
Before: WALLACE, CALLAHAN, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
This is an appeal by Capital Options, LLC (Capital) from the Bankruptcy
Court’s order denying confirmation of a Chapter 11 plan of reorganization that was
to be funded by the proceeds of Capital’s adversary proceedings against George H.
Goldsmith and G2, LLC. The Bankruptcy Court, having dismissed Capital’s
adversary proceeding with prejudice, found the reorganization plan to be infeasible
under 11 U.S.C. § 1129(a), and also dismissed the administrative proceeding.
The denial of confirmation of a Chapter 11 reorganization plan is reviewed
for abuse of discretion. See In re Marshall, 721 F.3d 1032, 1045 (9th Cir. 2013).
In a contemporaneously filed memorandum disposition in In re Capital Options,
LLC, No. 15-60054, we affirm the Bankruptcy Court’s dismissal of the Capital’s
adversary proceeding. As this confirms the Bankruptcy Court’s determination that
the reorganization plan was infeasible, the Bankruptcy Court’s denial of the
confirmation plan is AFFIRMED.
2
FILED
Capital Options, LLC v. Loomis, 16-60053
JAN 10 2018
WALLACE, J., dissenting. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
While I agree with the majority on the merits, I would instead dismiss this
appeal for lack of jurisdiction. This appeal is from the denial of plan confirmation
without prejudice. The Supreme Court held in Bullard v. Blue Hills Bank that the
denial of plan confirmation with leave to amend is categorically not a final order.
135 S.Ct. 1686, 1692 (2015). While Bullard involved a Chapter 13 case, the
Court’s reasoning applies with equal force to Chapter 11 cases, such as ours. See
id. at 1693 (“These concerns [relating to piecemeal appeals] are heightened if the
same rule applies in Chapter 11, as the parties assume”). Although not binding on
us, the Bankruptcy Appellate Panel reached this same conclusion, citing Bullard,
and held it had jurisdiction only by granting leave to review an interlocutory
appeal. Unlike the Bankruptcy Appellate Panel, we cannot review interlocutory
appeals, except in circumstances not applicable here. See In re Gugliuzza, 852 F.3d
884, 890–91 (9th Cir. 2017), citing 28 U.S.C. § 158(d)(1). Therefore, we have no
jurisdiction to hear this appeal.