Capital Options, LLC v. C. Loomis

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                                                                            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                             NOT FOR PUBLICATION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.