The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0003p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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FIORAVANTE SETTEMBRE,
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Appellee,
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No. 08-5083
v.
,
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FIDELITY & GUARANTY LIFE INSURANCE CO.; -
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NATIONAL LIFE INSURANCE COMPANY; LIFE
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EVENT ADVANTAGE DIVISION OF LIFE
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Appellants. -
INSURANCE COMPANY OF THE SOUTHWEST,
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Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 07-00129—Joseph H. McKinley, Jr., District Judge.
Argued: October 28, 2008
Decided and Filed: January 7, 2009
Before: NORRIS, ROGERS, and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: Mary Elizabeth Eade, FULTZ, MADDOX, HOVIOUS & DICKENS,
Louisville, Kentucky, for Appellants. Russ L. Wilkey, RUSS WILKEY, P.S.C., Owensboro,
Kentucky, for Appellee. ON BRIEF: Mary Elizabeth Eade, FULTZ, MADDOX,
HOVIOUS & DICKENS, Louisville, Kentucky, for Appellants. Russ L. Wilkey, RUSS
WILKEY, P.S.C., Owensboro, Kentucky, for Appellee.
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OPINION
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KETHLEDGE, Circuit Judge. In this matter, the bankruptcy court granted the
appellants (collectively, “Fidelity”) summary judgment on their complaint against the debtor,
Fioravante Settembre, for denial of a discharge. The district court reversed and remanded
the case for trial on Fidelity’s complaint. Fidelity now seeks review of the district court’s
order.
I.
Between August 2001 and July 2003, Settembre and a third party borrowed
approximately $700,000 from Fidelity to fund a business venture called InsBanc, Inc. The
venture apparently failed, and, on October 15, 2005, Settembre filed a voluntary petition for
relief under Chapter 7 of the Bankruptcy Code. At Fidelity’s request, the bankruptcy court
thereafter ordered Settembre to produce business records for the years 2003-05. After
repeated delays, Settembre produced very few of the records that he was ordered to produce,
and claimed the rest no longer existed.
In response, Fidelity filed a complaint under 11 U.S.C. § 727(a)(3), in which it
sought to deny Settembre a discharge based upon his alleged failure to maintain records from
which his financial condition could be ascertained. Fidelity thereafter moved for summary
judgment on its complaint. The bankruptcy court granted the motion, finding that Settembre
was a “sophisticated person” who should have been able to produce the requested
documents, and that his reason for not doing so—that he had lost them in a move—was
“patently insufficient.”
Settembre appealed to the district court, which reversed. That court held that
Settembre “should have the opportunity to testify and present evidence regarding his level
of sophistication, the complexity of his financial situation, the nature of [his] account[s],
whether there are independent means of substantiating his financial transactions, and any
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other relevant information.” Accordingly, the district court remanded the case for trial on
Fidelity’s complaint. Fidelity now seeks review of that order.
II.
We must determine whether the district court’s remand order is a “final” one over
which we have jurisdiction under 28 U.S.C. § 158(d)(1). Most circuits—by our count, nine
of them—hold that a district court order remanding a case to the bankruptcy court “is not
final and appealable unless the remand is for ‘ministerial’ proceedings.” In re Holland, 539
F.3d 563, 565 (7th Cir. 2008) (collecting cases). A minority of circuits—the Third and the
Ninth—“apply multi-factor balancing tests to determine whether an order is final and
appealable in this context.” Id. (collecting cases). Their tests essentially boil down to the
question whether “on balance the goal of an expeditious winding up of the bankruptcy
proceeding will be furthered by allowing an immediate appeal.” In re Lopez, 116 F.3d 1191,
1193 (7th Cir. 1997).
This circuit’s approach has been a body in motion. We passed very near the minority
rule in In re Gardner, 810 F.2d 87 (6th Cir. 1987), where we exercised jurisdiction over a
district court order remanding the case to the bankruptcy court for further litigation of two
issues, one legal and one factual. We deemed the order final because the legal issue required
“no further factual development” and, standing alone, was potentially dispositive of the case.
Id. at 92. We expressly limited our holding, however, to “the particular circumstances” of
that case. Id.
Since then we have moved away from the minority rule. In In re Frederick
Petroleum, 912 F.2d 850 (6th Cir. 1990), the district court’s order would have been deemed
final had we followed the Gardner approach. See In re Brown, 248 F.3d 484, 488 (6th Cir.
2001). But we declined to follow Gardner, instead reading it to be “limited to the specific
circumstances of that case.” Frederick Petroleum, 912 F.2d at 853. We further observed
that Bankruptcy Rule of Procedure 7054 incorporates by reference Federal Rule of Civil
Procedure 54; and we held that the district court’s “partial disposition” of the case was not
final because the district court had not certified its order as such under Rule 54(b). Id. at
854.
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We again declined to follow Gardner in In re Miller’s Cove, 128 F.3d 449 (6th Cir.
1997). There—notwithstanding the presence of a legal issue that, standing alone, was
potentially dispositive of the case—we held that the district court’s order was not final
because it had not been certified under Rule 54(b). Id. at 452. This trend continued in In re
Yousif, 201 F.3d 774 (6th Cir. 2000) where, absent a Rule 54(b) certification, we refused to
exercise jurisdiction over an order “entered as ‘to one or more but fewer than all the claims
or parties.’” Id. at 779 (quoting Rule 54(b)). In a concurring opinion, Judge Moore
reviewed our varying approaches to this issue and asserted that “we should adopt ‘the
prevailing view that courts of appeals lack jurisdiction over appeals from orders of district
courts remanding for significant further proceedings in bankruptcy courts.’” Id. at 783
(Moore, J., concurring) (quoting In Re Prudential Lines, Inc., 59 F.3d 327, 331 (2d Cir.
1995)).
Finally, in In re Brown, 248 F.3d 484 (6th Cir. 2001), we analyzed in some detail the
Sixth Circuit authority discussed above, and concluded: “These cases make clear to us that
the approach used in In re Gardner was limited to that case and this Circuit has refused to
extend that approach further. Thus, the question of finality of a partial judgment turns only
on Fed. R. Civ. P. 54(b) certification.” Id. at 488.
Since our 1987 decision in Gardner, then, this circuit has refused to exercise
jurisdiction over bankruptcy appeals in which the district court has remanded the case for
proceedings that were beyond ministerial. And we have rigorously applied the requirements
of Rule 54(b) to partial judgments “entered as ‘to one or more but fewer than all the claims
or parties.’” In re Yousif, 201 F.3d at 779 (quoting Rule 54(b)).
This trajectory, we think, has brought us among the constellation of circuits that
follow the majority rule. We clarify that position today, and hold expressly that “a decision
by the district court on appeal remanding the bankruptcy court’s decision for further
proceedings in the bankruptcy court is not final, and so is not appealable to this court, unless
the further proceedings contemplated are of a purely ministerial character.” Lopez, 116 F.3d
at 1192. Moreover, per our precedents as discussed above, Rule 54(b) continues to apply
in bankruptcy appeals. Thus, “[w]hen an action presents more than one claim for relief[,]”
or “multiple parties are involved,” a partial judgment disposing of “fewer than all of the
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claims or parties[,]” Fed. R. Civ. P. 54(b), is final only if the district court certifies the
judgment under that Rule.
There are good reasons to follow the majority rule. First, “the majority rule is
consistent with (in fact, it is identical to) the rule with regard to the finality of district court
decisions in general[.]” Lopez, 116 F.3d at 1193. That makes sense as a textual matter;
“final[ity]” is the prerequisite of our jurisdiction over district court orders in bankruptcy and
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non-bankruptcy cases alike. See 28 U.S.C. §§ 158(d), 1291. Subject to one caveat, “final”
should not mean one thing in the former cases and another in the latter. District court
orders denying summary judgment in non-bankruptcy cases do not become final when
based on “purely legal” grounds, no matter how dubious those grounds might be; and we
see no reason to treat remand orders in bankruptcy cases any differently.
The majority rule also makes sense as a practical matter. The alternative
minority rule—or rules, really, since “no single formulation has emerged as
canonical”— “is terribly woolly,” forcing courts to balance various interests that are
themselves not crisply defined and that, in some formulations at least, devolve into a
scattering of sub-factors which diffuse the analysis still further. Lopez, 116 F.3d at 1194
(emphasis in original). The result—as a comparison of “the lengths of the opinions
applying [the majority] rule with the lengths of the opinions applying the minority rule”
reveals, id.—is a great deal of litigation about when the merits of a case shall be litigated.
So we proceed to apply the majority rule here. In reversing the bankruptcy
court’s entry of summary judgment in Fidelity’s favor, the district court held that, on the
record before it, “there are enough questions to warrant a trial.” A trial is not a
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The caveat concerns the definition of a case, not the definition of finality. As Judge Posner has
explained:
A bankruptcy case is often a congeries of functionally distinct cases. The clearest example is that of
the adversary action. Suppose the debtor has a tort claim against some third party. The trustee in
bankruptcy will litigate that claim as an adversary action against the third party, embedded in the
bankruptcy proceeding. Once the action is finally decided in the bankruptcy and district courts, the
fact that the bankruptcy proceeding may be continuing is no reason to delay the appeal from the
decision in the action, so the decision is deemed “final,” and appeal allowed.
Lopez, 116 F.3d at 1193.
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proceeding purely of a ministerial character. We therefore lack jurisdiction over the
order before us, and dismiss this appeal.