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Jones v. Morgan

United States District Court, N.D. Mississippi, Oxford Division

December 14, 2016

REBECCA JEAN JONES a/k/a Rebecca Jean Mcgahey APPELLANT
v.
DOROTHY MORGAN APPELLEE

          ORDER DENYING LEAVE TO APPEAL

          Debra M. Brown, UNITED STATES DISTRICT JUDGE

Before the Court is Rebecca Jean Jones' motion for leave to appeal an interlocutory order from an adversary proceeding pending in the United States Bankruptcy Court for the Northern District of Mississippi. Doc. #1. Because Jones has not satisfied the requirements for an interlocutory appeal, the motion will be denied.

         I

         Procedural History

         On August 31, 2015, debtor Rebecca Jean Jones filed an adversary proceeding against Dorothy Morgan in the United States Bankruptcy Court for the Northern District of Mississippi. Jones v. Morgan, No. 15-11505 (Bankr. N.D. Miss.) (Doc. #1). On September 23, 2015, the Bankruptcy Clerk of Court issued an alias summons for Morgan. Morgan received service of the alias summons on September 25, 2015. On October 5, 2015, Morgan answered the complaint. A certificate of service attached to the answer (but strangely dated three days before the answer itself) represents that the answer was mailed to Jones at the address listed for her on the docket.

         On November 2, 2015, Jones filed an “Application for Entry of Default, ” asserting that she had not received a copy of the answer. Jones also filed a motion to vacate the discovery schedule in the adversary proceeding on the ground that the requested default would render discovery unnecessary. Two days later, on November 4, 2015, United States Bankruptcy Judge Jason D. Woodward set the two motions for hearing. On November 24, 2015, counsel for Morgan responded to the application for default, stating that the answer had been mailed on October 5, 2015.

         On December 23, 2015, Judge Woodward, following a December 9, 2015, hearing, entered an order finding that Jones received a copy of the answer. Doc. #1-1. Accordingly, Judge Woodward denied the application for default and the motion to vacate. Id.

         On January 15, 2016, [1] Jones filed in the Bankruptcy Court a “Motion for Leave to Appeal by Bankruptcy Rule 8004, If Issue on Appeal Not Judged a Final Order, and Because of the Issue on Appeal, for a Stay of Judgment until Appeal Decided and Waiver of Feeling [sic] Fee.” Doc. #1. In her motion, Jones asks the Court to: (1) accept an appeal of Judge Woodward's December 23, 2015, order; (2) stay the order; and (3) waive the appeal filing fee. Id. Morgan did not respond to the motion.

         II Analysis

         28 U.S.C. § 158(a) provides:

         The district courts of the United States shall have jurisdiction to hear appeals

(1) from final judgments, orders, and decrees;
(2) from interlocutory orders and decrees issued under section 1121(d) of title 11 increasing or reducing the time periods referred to in section 1121 of such title; and
(3) with leave of the court, from other interlocutory orders and decrees; and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the ...

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