United States District Court, D. Hawaii
ORDER DENYING LEAVE TO APPEAL 
Derrick K. Watson, United States District Judge.
March 15, 2019, Appellant Rich Sea Corp. (“RSC”
or “Appellant”) filed an appeal from an
interlocutory order in a bankruptcy adversary proceeding, as
well as a motion for leave to appeal pursuant to Federal Rule
of Bankruptcy Procedure 8004. Dkt. Nos. 1 to 1-3. The motion
for leave to appeal, however, failed to address why leave to
appeal should be granted, as required by district courts and
the Bankruptcy Appellate Panel in this Circuit. As a result,
the Court instructed RSC to file a brief on why leave to
appeal should be granted. Dkt. No. 3. Specifically, the Court
instructed RSC to explain why (1) the order sought to be
appealed involves a controlling question of law as to which
there is a substantial ground for difference of opinion, and
(2) an immediate appeal may materially advance the ultimate
termination of the litigation. Despite these instructions,
RSC's brief fails to explain why the appeal it seeks
involves a controlling question of law. As a result, because
leave to appeal is a discretionary decision and RSC has
failed to adequately explain why this Court should exercise
discretion in its favor, this appeal is DISMISSED.
October 17, 2018, an adversary proceeding was opened between,
inter alia, RSC and Wai Yin Lam (Lam), the debtor in
a Chapter 7 bankruptcy proceeding, following the removal of
an action filed in state court against Lam. Dkt. No. 1-3 at
2. The next day, in the adversary proceeding, the Trustee for
Lam's bankruptcy estate, Appellee Dane S. Field, filed a
motion to expunge lis pendens (“the motion to
expunge”). Id. at 3.
bankruptcy court, after conducting a hearing on the motion to
expunge, granted the same on February 26, 2019. Id.
at 7-8; Dkt. No. 1-2 at 28-37. Essentially, the bankruptcy
court found that, because RSC's action against Lam did
not directly seek to obtain title or possession of property,
a lis pendens RSC had filed was not valid and should be
expunged. Dkt. No. 1-2 at 28-37.
March 15, 2019, RSC appealed to this Court the interlocutory
order granting the motion to expunge. Dkt. Nos. 1, 1-1. At
the same time, RSC filed a motion for leave to appeal
(“the motion for leave to appeal”), pursuant to
Rule 8004. Dkt. No. 1-2 at 1-4. As discussed above (and
further below), the motion for leave to appeal does not
mention the discretionary standard a district court or the
Bankruptcy Appellate Panel (BAP) considers in this Circuit as
to whether to grant leave to appeal. As a result, RSC was
instructed to file a brief addressing that standard. Dkt. No.
3. In addition, Appellee was provided leave to file a brief
in response. On April 17, 2018, RSC filed its brief, and, a
week later, Appellee filed a response. Dkt. Nos. 4, 5.
in certain limited circumstances not at issue here, a party
seeking to appeal an interlocutory order of a bankruptcy
judge may only do so with leave of court. 28 U.S.C. §
considering whether to grant such leave, courts generally
“loo[k] to the standards set forth in 28 U.S.C. §
1292(b), which concerns the taking of interlocutory appeals
from the district court to the court of appeals.”
In re Roderick Timber Co., 185 B.R. 601, 604 (B.A.P.
9th Cir. 1995); see also In re Van Zandt, 2014 WL
1422973, at *1 (N.D. Cal. Apr. 11, 2014); In re
Belli, 268 B.R. 851, 858 (B.A.P. 9th Cir. 2001). The
relevant question under Section 1292(b) is “whether the
order on appeal involves a controlling question of law as to
which there is a substantial ground for difference of opinion
and whether an immediate appeal may materially advance the
ultimate termination of the litigation.”
Roderick, 185 B.R. at 604. The Ninth Circuit Court
of Appeals has explained the standard as requiring:
“(1) that there be a controlling question of law, (2)
that there be substantial grounds for difference of opinion,
and (3) that an immediate appeal may materially advance the
ultimate termination of the litigation.” In re
Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir.
1981). The party pursuing an interlocutory appeal has the
burden of demonstrating that each of these requirements has
been met. Couch v. Telescope Inc., 611 F.3d 629, 633
(9th Cir. 2010).
Court begins with the first question: whether the order
sought to be appealed involves a controlling question of law.
For there to be a controlling question of law, RSC must show
that “resolution of the issue on appeal could
materially affect the outcome of litigation….”
In re Cement, 673 F.2d at 1026.
neither the motion for leave to appeal nor RSC's brief
addresses the Section 1292(b) requirement that there be a
controlling question of law. In fact, the motion for leave to
appeal does not even mention the relevant standard,
let alone explain why the order sought to be appealed
involves a controlling question of law. As for RSC's
brief, while RSC addresses why the order sought to be
appealed purportedly involves an unsettled question
of law, see Dkt. No. 4 at 2-4, the brief is silent
as to whether that question is a controlling one for
purposes of Section 1292(b), see id.
addition, the Court agrees with Appellee that this case does
not involve a controlling question
of law. See Dkt. No. 5 at 1-2. More specifically,
whether or not RSC's lis pendens should have been
expunged will have no effect on whether RSC will prevail on
any of the substantive claims it has raised in the adversary
proceeding, including who holds lawful title to various
result, RSC has failed to show that the order sought to be
appealed involves a controlling question of
Because RSC was required to make that showing, the Court
DENIES the ...