[00:00:00] Speaker 01:
Thank you, gentlemen.

[00:00:03] Speaker 01:
We'll now hear argument in the case of Fantasia versus Neodato.

[00:00:25] Speaker 01:
I think it is Ms.

[00:00:26] Speaker 01:
Maxwell, correct?

[00:00:27] Speaker 02:
Yes, may it please the court.

[00:00:28] Speaker 02:
I'm April Maxwell.

[00:00:29] Speaker 02:
I'm hearing on behalf of Ms.

[00:00:31] Speaker 02:
Frances Fantasia.

[00:00:34] Speaker 02:
And I'd like to reserve two minutes for a rebuttal.

[00:00:37] Speaker 02:
So about a week ago we got a list of some questions from this panel, so I'm just going to go ahead and start with those.

[00:00:45] Speaker 02:
One question that this panel asked was whether the court's minute entry should be construed as an order either granting reconsideration of its prior order modifying the automatic stay or granting reconsideration of its prior order granting abstention or both.

[00:00:59] Speaker 02:
I'm going to have to go with D, none of the above.

[00:01:02] Speaker 02:
As I was looking into this a little bit more closely with that question, I realized that I was guilty of using the same incorrect language.

[00:01:09] Speaker 02:
But this is actually not a motion for reconsideration, because technically in the federal rules of civil procedure, there is no allowance for a motion for reconsideration.

[00:01:20] Speaker 00:
So I understand your technical point.

[00:01:23] Speaker 00:
It was a motion for relief under Rule 60, correct?

[00:01:26] Speaker 00:
Exactly, right.

[00:01:27] Speaker 00:
But what is the relief that sought?

[00:01:29] Speaker 00:
Were you asking the court to grant relief from an order that was an abstention order, a stay order, neither, both?

[00:01:39] Speaker 02:
I would say, I think that the question sort of changes what we should be looking at, because from what I understand... But that's a jurisdictional issue.

[00:01:50] Speaker 00:
So that's what we need to look at first.

[00:01:52] Speaker 00:
And neither party briefed this before the district court or before this court.

[00:01:57] Speaker 00:
So it makes a big difference because I know you want us to go to consideration of the merits of the Rule 60 motion and the resulting order.

[00:02:08] Speaker 00:
But before, we can't get there without jurisdiction.

[00:02:11] Speaker 00:
So you have to answer these questions.

[00:02:14] Speaker 02:
I agree completely.

[00:02:15] Speaker 02:
We cannot look at this without jurisdiction.

[00:02:17] Speaker 02:
And the question, and what we are saying is that the court exceeded their jurisdiction by issuing the 60B order because since it was supposed to be under ruled under 60B1, that's not, we're still like ships passing in the night here.

[00:02:32] Speaker 00:
That's not the point.

[00:02:33] Speaker 00:
That just goes to the merits of the order, whether it was 60B1 or 60B6.

[00:02:36] Speaker 00:
And if it was 60B1, was it untimely?

[00:02:39] Speaker 00:
That's not the jurisdictional issue.

[00:02:41] Speaker 00:
The jurisdictional issue is whether when the bankruptcy court granted relief and changed its prior position on something, stay or the automatic stay or extension, was that a final order?

[00:02:57] Speaker 00:
Because if that were a final order, then you had 14 days to appeal.

[00:03:00] Speaker 00:
That's a jurisdictional requirement.

[00:03:02] Speaker 00:
That's why what the nature of that motion and that order, what they were, is critical.

[00:03:07] Speaker 00:
If it was not a final order, if it was some sort of interlocutory order, then you could wait till the conclusion of the bankruptcy proceeding and appeal as you did.

[00:03:15] Speaker 00:
So we know the Supreme Court and Ritz and group has said motions denying or granting relief from a stay are final orders.

[00:03:23] Speaker 00:
So that's why this becomes a critical question.

[00:03:25] Speaker 00:
Was that an order granting relief from a stay or denying relief or was it an abstention order which may be treated differently?

[00:03:32] Speaker 00:
Maybe not.

[00:03:34] Speaker 02:
We believe it was more properly considered an abstention order.

[00:03:37] Speaker 02:
And when it comes to abstention, issues of the automatic stay do always come in.

[00:03:42] Speaker 02:
However, that does not mean, I mean, the Ritz and Case was pretty much on par with what

[00:03:48] Speaker 02:
this circuit has been doing since 1984 in that they cited the Ninth Circuit as they've already decided that orders that modify the automatic stay are final orders.

[00:04:03] Speaker 02:
And at that same time, while this circuit has been deciding that up or down automatic stay is a final order, however, motions regarding abstention are interlocutory orders.

[00:04:14] Speaker 00:
That was in the context, I think I know the cases you're referring to, as the GNAC was one of them.

[00:04:20] Speaker 00:
I was discussing whether the collateral order doctrine applied, right?

[00:04:23] Speaker 00:
And that's different from a final order, because you could have an order that is not final, but you can still appeal it under the collateral order doctrine.

[00:04:30] Speaker 00:
And those cases all talk about that means of an immediate appeal.

[00:04:36] Speaker 00:
So we need you to focus on, and the district court analyzed this under the collateral order doctrine, that was clearly

[00:04:43] Speaker 00:
briefed and discussed before the district court.

[00:04:47] Speaker 00:
Not before us, but what was that order?

[00:04:51] Speaker 00:
Was it a final order or was it not a final order such that it could be merged into the judgment later and appealed?

[00:05:01] Speaker 02:
It was not a final order.

[00:05:02] Speaker 02:
Implicit in being able to use a collateral order doctrine is the fact that it is not a final order.

[00:05:10] Speaker 02:
the collateral order doctrine doesn't even come into play when it's a final order.

[00:05:13] Speaker 02:
So therefore, the fact that they were, that they're analyzing whether you can use the collateral order doctrine.

[00:05:19] Speaker 00:
Because the district judge responded to the argument on the collateral order doctrine, you're saying that means it was not a final order?

[00:05:26] Speaker 02:
No, I'm sorry, I'm saying under the GACN and general carriers that we're specifically analyzing whether they can use the collateral order doctrine in order to immediately review under an exception to an interlocutory appeal.

[00:05:44] Speaker 02:
The fact that they had to look at the collateral order doctrine means that it was not a final order.

[00:05:52] Speaker 02:
Because if it was a final order, they wouldn't even be discussing the collateral order doctrine.

[00:05:56] Speaker 02:
Does that?

[00:05:57] Speaker 02:
I understand what you're saying.

[00:06:01] Speaker 03:
OK.

[00:06:01] Speaker 03:
I think that you said earlier that the original order and the order on reconsideration or rules, whatever we're going to call that second order that changes the district court or the bankruptcy court changed its mind, both of those orders

[00:06:13] Speaker 03:
addressed relief from stay.

[00:06:14] Speaker 03:
Would you agree with that?

[00:06:16] Speaker 03:
It might have done other things too, but both of those orders also talked about relief from stay.

[00:06:22] Speaker 02:
Yes, they're implicit in talking about obsession.

[00:06:25] Speaker 02:
You are also talking about relief from stay in some form.

[00:06:28] Speaker 03:
Okay, so if you agree with that, then what do you do with this sentence from Ritzen, which is, you know, it post-states all of the case law you're talking about, GACN and all of those, that says,

[00:06:39] Speaker 03:
Classifying as final, all orders conclusively resolving stay relief motions will avoid rather than cause delays and inefficiencies.

[00:06:47] Speaker 03:
And then it goes on to say immediate appeal is appropriate.

[00:06:51] Speaker 03:
So if these orders, at least in part, addressed relief from stay, why isn't Ritzen triggered?

[00:07:00] Speaker 02:
Well, if you look at, I believe it's note four, it also says, we do not decide whether finality would attach to an order denying stay if the bankruptcy enters

[00:07:10] Speaker 02:
without prejudice because further developments might change that state calculus.

[00:07:16] Speaker 02:
And so... What's in the record to show us that these orders were entered without prejudice?

[00:07:22] Speaker 02:
I think it's inherent in the fact that in the Ninth Circuit that has always been the issue that stay relief orders have been for decades.

[00:07:34] Speaker 02:
It has been.

[00:07:35] Speaker 02:
a final appealable order.

[00:07:38] Speaker 02:
However, the courts have also continued to recognize that abstention orders are inherently different, even though it involves the automatic stay.

[00:07:47] Speaker 02:
There's enough that is continuing to go on that those are considered interlocutory orders.

[00:07:53] Speaker 00:
So even if that's the case, how do you get around 28 U.S.C.

[00:07:57] Speaker 00:
Section 1334D, which says there is no appeal to this court from an abstention order?

[00:08:06] Speaker 02:
It is true, and that's why we're not necessarily talking about the merits of the abstention order, because that might not be able to happen.

[00:08:14] Speaker 02:
However, there is the same sort of language in 1452, which has to do with remand.

[00:08:21] Speaker 02:
It says it cannot be repealed.

[00:08:22] Speaker 02:
And the courts have consistently decided, even at the Supreme Court level, that while it's not revealable per se, this court still has the opportunity, as well as the obligation, to look at if

[00:08:36] Speaker 02:
The court was staying within their statutory and their constitutional bounds and making sure that they had the correct jurisdiction.

[00:08:43] Speaker 02:
And our argument is that the bankruptcy court went outside of its statutory bounds

[00:08:52] Speaker 02:
It went outside of the authorized ability to issue this order.

[00:08:59] Speaker 02:
And this court always reserves the ability to look at if there was jurisdiction, whether there was that statute or not.

[00:09:07] Speaker 02:
Before I sit down and reserve- Want to save the rest of your time?

[00:09:10] Speaker 01:
Thank you.

[00:09:10] Speaker 03:
I have another question before you sit down.

[00:09:12] Speaker 03:
Please.

[00:09:12] Speaker 03:
I'm trying to figure out, in this case, the relief that the bankruptcy court was granting sort of took, and I think you've said this a couple of times,

[00:09:21] Speaker 03:
took abstention and relief from stay, and they kind of went hand in hand, right?

[00:09:24] Speaker 03:
I'm not going to decide this case.

[00:09:26] Speaker 03:
Massachusetts will decide this case.

[00:09:28] Speaker 03:
And to facilitate that, I'm going to grant relief from stay, at least in part, so that the Massachusetts litigation can continue, right?

[00:09:35] Speaker 03:
Yes.

[00:09:36] Speaker 03:
Are there circumstances where a bankruptcy court can abstain but not also have to grant relief from stay?

[00:09:46] Speaker 03:
For example, could a bankruptcy court say,

[00:09:49] Speaker 03:
There's something developing in the law, something's uncertain, I'm going to abstain from dealing with this issue without also saying, but someone else is going to decide it.

[00:09:58] Speaker 02:
Well, I guess they could abstain without granting relief for stay if the state does not apply.

[00:10:03] Speaker 02:
For example, the state does not reply in criminal matters.

[00:10:06] Speaker 02:
I don't see why bankruptcy court would be deciding that.

[00:10:09] Speaker 02:
But if there was some sort of an overlap there, but there are certain things, for example,

[00:10:15] Speaker 02:
When it comes to child custody, child support, when it comes to criminal matters, there are certain issues where the state just does not apply at all.

[00:10:22] Speaker 02:
And therefore, there would not be any relief from stay with the abstention.

[00:10:27] Speaker 03:
So you would do, in that context, you would have an abstention, but you would not have relief from stay?

[00:10:33] Speaker 03:
If the stay doesn't apply, I would think so, yes.

[00:10:36] Speaker 00:
Thank you.

[00:10:37] Speaker 00:
Did the stay apply to the state law claims that were at issue?

[00:10:42] Speaker 00:
I mean, there was litigation pending in Massachusetts State Court and then the bankruptcy petition was filed.

[00:10:49] Speaker 00:
And then it appears that the bankruptcy court believed that the automatic stay applied to those claims because the judge granted relief, modified the stay in part to allow those claims to proceed in state court.

[00:11:04] Speaker 00:
So it doesn't seem that this factually, this is a situation where a stay did not apply.

[00:11:11] Speaker 02:
That is true that I cannot think of a time, I cannot think of this being an instance where the state did not apply.

[00:11:21] Speaker 02:
However, I think that the current cases that have gone on throughout the country as well as in this jurisdiction really notice that, and they seem to rest on the idea that even though there is the state that's woven in and interrelates, it is sufficiently different as to be an interlocutory appeal, which then we would have to look at the collateral order doctrine to see if you can immediately appeal or appeal at the end.

[00:11:51] Speaker 00:
I'm not sure I follow what you just said.

[00:11:53] Speaker 00:
And I also don't know that you've addressed 1334D.

[00:11:59] Speaker 00:
I mean, you've analogized to a remand statute.

[00:12:03] Speaker 00:
But I will tell you, we did not find a lot of case law discussing this statute.

[00:12:08] Speaker 00:
But it seems that it was a post-martial enactment so that there would be Article III review of bankruptcy court order.

[00:12:16] Speaker 00:
So you could appeal that.

[00:12:18] Speaker 00:
You can appeal an abstention order to the district court

[00:12:21] Speaker 00:
But the statute's pretty clear in its language that any decision to abstain or to not abstain under 1334 C is not reviewable by appeal or otherwise by the Court of Appeals.

[00:12:36] Speaker 02:
And I will agree that the merits of whether or not to abstain are not necessarily reviewable, which is why we're not going through about, well, is he correct in looking at if there is a reasonable time

[00:12:48] Speaker 02:
or we're not looking at the merits of the original abstain order.

[00:12:54] Speaker 02:
But this court does have the obligation to look at whether the bankruptcy court had jurisdiction to enter that order to begin with.

[00:13:03] Speaker 02:
And I agree, I did not find very many cases on the statute that we're talking about, but the language is extremely analogous to the 1452, where there is a lot of case law, where it says the fact that

[00:13:18] Speaker 02:
It says it's not able to be reviewed, does not mean that it cannot be reviewed to make sure that the court did not exceed their jurisdiction.

[00:13:26] Speaker 02:
And that's what we're asking you to do.

[00:13:27] Speaker 00:
And what court are they talking about?

[00:13:29] Speaker 00:
The bankruptcy court or the district court?

[00:13:31] Speaker 00:
I mean, we would have jurisdiction to review some aspects of the district judge's order, but it doesn't seem like under the plain language of the statute that we could reconsider or we could review an abstention order.

[00:13:43] Speaker 00:
This was permissive abstention, correct?

[00:13:45] Speaker 00:
This is not mandatory abstention.

[00:13:46] Speaker 00:
Right.

[00:13:48] Speaker 02:
That's our position that was permissive abstention.

[00:13:52] Speaker 02:
And there is that ability to review the mandatory in the limited circumstance.

[00:13:57] Speaker 02:
However, you can always look to make sure whether there is subject matter jurisdiction.

[00:14:04] Speaker 02:
And whether or not the bankruptcy court exceeded its authority to enter that order, the Rule 60B motion order, is always within this court's ability to review.

[00:14:17] Speaker 01:
Council, since the court is taking over time, we'll give you a little extra time to rebut.

[00:14:20] Speaker 01:
Thank you.

[00:14:21] Speaker 01:
But let's hear from opposing council and then we'll give you some brief rebuttal time.

[00:14:25] Speaker 02:
Thank you.

[00:14:29] Speaker 01:
You say Dukievicz, is that correct?

[00:14:33] Speaker 04:
That's not.

[00:14:33] Speaker 04:
It's close though.

[00:14:34] Speaker 01:
Close.

[00:14:35] Speaker 01:
It's Dukievicz.

[00:14:37] Speaker 01:
Oh, Dukievicz.

[00:14:38] Speaker 01:
Okay, very good.

[00:14:38] Speaker 04:
Thank you.

[00:14:39] Speaker 04:
You can call me anything you'd like other than late for dinner.

[00:14:42] Speaker 04:
Is that question four?

[00:14:44] Speaker 00:
There should be.

[00:14:45] Speaker 00:
There you go.

[00:14:46] Speaker 00:
The other one will move it up.

[00:14:48] Speaker 04:
Sorry.

[00:14:48] Speaker 04:
Maybe we need to put it up there.

[00:14:53] Speaker 04:
I think that's as high as it goes.

[00:14:55] Speaker 04:
Um, thank you, your honors.

[00:14:56] Speaker 04:
Chris to cave edge for the debtor.

[00:14:58] Speaker 04:
Carrie Diodato and non debtor defendant.

[00:15:03] Speaker 04:
Michael Diodato, who are also the appellees.

[00:15:08] Speaker 04:
I did have some prepared statements, but, I mean, it's very clear to me we tend to get away from the reality of the situation.

[00:15:16] Speaker 04:
This was, you know, a lot of litigation going on prior to the filing of the bankruptcy.

[00:15:22] Speaker 04:
We come into bankruptcy court, and the plaintiff, Francis, is upset here in her counsel.

[00:15:31] Speaker 04:
They're upset.

[00:15:33] Speaker 04:
It's a very hotly contested situation, mother, daughter, husband.

[00:15:38] Speaker 04:
There's a lot going on here.

[00:15:40] Speaker 04:
We want to continue to sue you in Massachusetts.

[00:15:43] Speaker 04:
We're upset that you've moved to Arizona.

[00:15:46] Speaker 04:
So we're going to come into court and file a motion for

[00:15:51] Speaker 04:
Stay relief and abstention a joint motion because boots on the ground bankruptcy attorneys we know you really can't sue someone or continue your lawsuit unless you get stay relief have to do that.

[00:16:05] Speaker 04:
And so that's why the motion is written that way.

[00:16:09] Speaker 04:
You could find that in our district response appendix for that.

[00:16:13] Speaker 04:
That full motion, Mr. Heider counseled in for Francis, writes it very clearly.

[00:16:19] Speaker 04:
And so first he asks for stay relief because he needs stay relief.

[00:16:24] Speaker 03:
Council, can I ask you right there?

[00:16:26] Speaker 04:
Yes.

[00:16:26] Speaker 03:
Did he also need an abstention or could he have just gotten stay relief and then that would have allowed Massachusetts to go forward?

[00:16:33] Speaker 04:
He could have easily asked just for stay relief and then attempted to continue, because the lawsuit was already started in Massachusetts.

[00:16:45] Speaker 04:
He wanted specifically, I believe, permissive abstention, in part because the judge that we were dealing with in that bankruptcy court, he is very active in those kind of things.

[00:16:56] Speaker 04:
He wants to resolve those kind of disputes.

[00:16:59] Speaker 03:
So without the abstention, then you

[00:17:01] Speaker 03:
you would have had both the Bankruptcy Court and the Massachusetts Court dealing with the same issues.

[00:17:05] Speaker 04:
Correct.

[00:17:06] Speaker 04:
And so it was, as you would hope, an effort on one side at least of judicial economy.

[00:17:13] Speaker 04:
That was the arguments at first from the plaintiff throughout this process.

[00:17:20] Speaker 04:
In that motion, they call redoing the work that they've done in Massachusetts a colossal waste of money and time

[00:17:28] Speaker 04:
for this retired 80-year-old woman.

[00:17:32] Speaker 04:
That was five years ago and several hundred thousand dollars of legal fees have passed.

[00:17:38] Speaker 01:
I appreciate the human element of it.

[00:17:41] Speaker 01:
It's very important.

[00:17:42] Speaker 01:
And it's very important.

[00:17:43] Speaker 01:
I really get that.

[00:17:45] Speaker 01:
But as you've heard from the questions by the panel, we're stuck with the very basic question of do we have jurisdiction to hear this?

[00:17:55] Speaker 01:
And I would appreciate your best argument as to

[00:17:59] Speaker 01:
what case law controls, if any, or why your opponent's case law is distinguishable, why do we have or not have jurisdiction in this case?

[00:18:11] Speaker 04:
Yes.

[00:18:13] Speaker 04:
Well, and my position would be you wouldn't have jurisdiction.

[00:18:15] Speaker 04:
And the questions that the panel emailed gave me a great sense of regret that I did not

[00:18:22] Speaker 04:
pursue that again in my brief.

[00:18:25] Speaker 04:
I left it alone.

[00:18:26] Speaker 04:
I lost on the collateral argument.

[00:18:30] Speaker 04:
I won on something, on the merits.

[00:18:32] Speaker 04:
Those were what were appealed.

[00:18:33] Speaker 04:
And so I don't do appeals every day.

[00:18:36] Speaker 04:
And so I said, I'm going to use my time to respond to what my opponent and my actual friend from high school, believe it or not, we end up here randomly.

[00:18:47] Speaker 04:
had argued.

[00:18:48] Speaker 04:
And so, but the questions were very on point.

[00:18:50] Speaker 04:
Yes, this is an order for stay relief and a non-appealable order for abstention.

[00:18:59] Speaker 04:
The code, I always get my codes wrong, 1334 clearly says you can't appeal the abstention.

[00:19:08] Speaker 00:
Can you point us to, it doesn't seem to be a very heavily litigated provision in the code.

[00:19:13] Speaker 00:
Can you point us to any case law explaining

[00:19:16] Speaker 00:
more about Section 1334D and are there any circumstances despite the statute in which we would have the ability to review?

[00:19:25] Speaker 04:
I can't and I looked, you know, over the last few days in preparing for this, but to me it wasn't relevant for me to spend my time because even if

[00:19:38] Speaker 04:
Even if you could appeal an order for abstention, my client didn't.

[00:19:48] Speaker 04:
And we never asked to, and we've never asked for relief.

[00:19:52] Speaker 00:
But you understand the jurisdictional problem, right?

[00:19:54] Speaker 00:
So I understand you were focusing on the merits.

[00:19:57] Speaker 00:
You had written that below.

[00:19:58] Speaker 00:
But we can't even get there without jurisdiction.

[00:20:00] Speaker 00:
And of course, we have an obligation to confirm our own jurisdiction.

[00:20:04] Speaker 00:
So this first question has to be answered.

[00:20:07] Speaker 04:
But the first question I'm hearing is whether this is a non-appealable order on a motion for relief from state.

[00:20:15] Speaker 04:
And my answer to that is yes, that we should have appealed in 14 days.

[00:20:20] Speaker 04:
And when you bring it back to the context of not just this case or any case going on in bankruptcy where there is companion civil litigation,

[00:20:32] Speaker 04:
As the Ritzen Court summarizes, the rule that Ritzen wanted to promote was I waited until after I see what happens in the litigation, and then I decide, well, that motion for relief was entered in wrong, so I want to appeal that now because I'm not happy with the results that I got later on in the litigation.

[00:20:56] Speaker 04:
that's just inherently unfair and incredibly wasteful.

[00:21:00] Speaker 04:
It is exactly the rule that the Ritzen Court in 2020 specifically denies states, the rule Ritzen urges would force creditors who lose stay relief motions to fully litigate their claims in bankruptcy court and then

[00:21:21] Speaker 04:
after the bankruptcy case is over, appeal and seek to redo the litigation all over again in the original court.

[00:21:30] Speaker 04:
That's specifically what the plaintiff wants to do here.

[00:21:32] Speaker 00:
Right.

[00:21:33] Speaker 00:
So is your, I'm not saying right in that I'm agreeing with you, I'm just saying I understand your point.

[00:21:37] Speaker 00:
Sure.

[00:21:37] Speaker 00:
But is your argument then that because the initial motion sought modification of the

[00:21:47] Speaker 00:
and abstention, and then the order that granted relief from the earlier motion also addressed a stay and abstention, that this should be treated as an order either granting or denying relief from a stay, and it was the final order when it was entered and should have been appealed in 14 days.

[00:22:06] Speaker 04:
That's 100 percent my position, yes, because... And so your position would be it doesn't matter that

[00:22:14] Speaker 00:
there was abstention, said it wasn't just a stay motion.

[00:22:18] Speaker 00:
Abstention was involved as well.

[00:22:21] Speaker 04:
There isn't a lot of any relevance to me in the appealability of the motion for relief from stay that it had a companion order for abstention because as we already identified in this discussion, if you didn't have abstention, you would still just have the court.

[00:22:40] Speaker 04:
You'd have dual litigation.

[00:22:42] Speaker 04:
Dual litigation.

[00:22:43] Speaker 04:
So it doesn't really matter.

[00:22:45] Speaker 04:
Sorry, go ahead.

[00:22:47] Speaker 03:
Is that right?

[00:22:47] Speaker 03:
I mean, without the stay relief, the Massachusetts action would have been unlawful, wouldn't it?

[00:22:52] Speaker 04:
Well, that's what I'm saying.

[00:22:55] Speaker 04:
Let me correct myself.

[00:22:56] Speaker 03:
So I'm saying, if we simplify this and said it was just an abstention order, and let's just recreate the facts, because we'll just say that the bankruptcy court just said, I'm going to abstain, and the motion was just for abstention.

[00:23:06] Speaker 03:
There was no even hint of stay relief.

[00:23:08] Speaker 04:
Yes.

[00:23:09] Speaker 03:
If the bankruptcy court had only granted abstention,

[00:23:12] Speaker 03:
then you could have had the possibility of the two cases going on, except for the Massachusetts action would have been in violation of the stay, correct?

[00:23:19] Speaker 04:
Correct.

[00:23:19] Speaker 04:
Yeah, I would just have to disagree with your premise.

[00:23:21] Speaker 04:
And if I sent that message, that was an error.

[00:23:24] Speaker 04:
You couldn't ever have state court action going on in an active bankruptcy that has any kind of active stay to it.

[00:23:35] Speaker 03:
Well, I mean, you could.

[00:23:36] Speaker 03:
It would just be in violation of the stay, and somebody's going to get sanctioned.

[00:23:38] Speaker 04:
Sure.

[00:23:39] Speaker 04:
You couldn't have a valid action.

[00:23:41] Speaker 04:
Right.

[00:23:43] Speaker 00:
So I guess your point was if the bankruptcy court had lifted the stay, or at least in part, to allow the state court action to proceed, but did not abstain, then potentially the parties could litigate in both forms.

[00:23:57] Speaker 04:
That's what, I mean, that never happens, but yes, hypothetically for the purpose of this argument, that is what would have occurred.

[00:24:03] Speaker 01:
So for your purposes, because they didn't appeal in 14 days, we have no jurisdiction?

[00:24:09] Speaker 04:
Correct.

[00:24:16] Speaker 00:
40 seconds you have something brilliant.

[00:24:18] Speaker 04:
Oh, I don't have anything brilliant, but I would just emphasize that this question that that we're facing is one of the reasons why People outside of this building have a hard time with lawyers because what we're what we're suggesting is there's a possibility that we had a trial we had evidence and

[00:24:39] Speaker 04:
We spent thousands of dollars to resolve this.

[00:24:42] Speaker 04:
We had an appellate process through the district court.

[00:24:45] Speaker 04:
And now the possible remedy is to go all the way back to Massachusetts, not because anything wrong happened in the trial, but because having the trial in the location that we had it shouldn't have happened.

[00:24:57] Speaker 04:
And that is the question we should have answered before the trial.

[00:25:01] Speaker 01:
Thank you very much.

[00:25:02] Speaker 01:
So we'll give you a couple of minutes to respond since the court took your precious time there.

[00:25:08] Speaker 02:
Thank you.

[00:25:12] Speaker 02:
I think that the court has really identified the problem with separating the stay and the abstention.

[00:25:18] Speaker 02:
I think that they're so really intertwined that there's separate rules when the stay has to do with the abstention, when you have those two.

[00:25:29] Speaker 01:
What about your best argument that your high school friend is wrong about the 14-day time period?

[00:25:39] Speaker 01:
I'm sorry.

[00:25:39] Speaker 01:
Say that again.

[00:25:40] Speaker 01:
That it deprives us of jurisdiction.

[00:25:42] Speaker 01:
You didn't appeal in 14 days, so we have no jurisdiction.

[00:25:46] Speaker 01:
Why is he wrong?

[00:25:47] Speaker 02:
Why is he wrong?

[00:25:48] Speaker 02:
I mean, for one thing, they wanted to appeal right away.

[00:25:50] Speaker 02:
They were upset to have to go through an entire, all the case law that they sell said abstention means that you have to wait until the end.

[00:25:58] Speaker 02:
Shoot, we have to go through a whole trial, even though we think this was completely wrong, but we got to do it.

[00:26:04] Speaker 02:
And so as far as

[00:26:07] Speaker 02:
All the cases have, and what we just talked about, I think shows there's a difference between just a straight up and down automatic stay question and an ascension question.

[00:26:19] Speaker 03:
I think that cuts against you here.

[00:26:21] Speaker 03:
I think that reality cuts against you.

[00:26:23] Speaker 03:
Because what was really being asked for at the time, which was the ability to continue in Massachusetts, cannot happen without relief from stay.

[00:26:33] Speaker 03:
So two things were being asked for, but that one's the fundamental piece.

[00:26:39] Speaker 02:
Okay, and if they can't happen without the automatic stay being lifted and all the cases say that you cannot appeal on an abstention, then that's an irreconcilable issue because all the cases under the law and then the Ninth Circuit that said up or down automatic stay is immediately appealable, but abstention is not.

[00:27:04] Speaker 02:
We did not appeal at that point because we did not think that we had the ability to.

[00:27:10] Speaker 00:
Those cases were before Ritzen.

[00:27:14] Speaker 00:
And I know there was Ninth Circuit case law talking about a stay being final, an order lifting or denying relief from the stay being final.

[00:27:23] Speaker 00:
But that's not what was being addressed in GNAC and the other cases.

[00:27:26] Speaker 00:
It was all about

[00:27:30] Speaker 00:
collateral order doctrine and whether there was an adversary proceeding in place so that the order could later be appealed, which is an element of the collateral order doctrine.

[00:27:43] Speaker 00:
And they didn't talk about this particular issue, right?

[00:27:46] Speaker 00:
And then Ritson comes along and makes it crystal clear that you've got to appeal this right away because bankruptcy is different from other civil litigation and it's compartmentalized and you want things resolved because otherwise you have the situation that

[00:27:59] Speaker 00:
you have right now.

[00:28:02] Speaker 00:
So I don't know how your clients rely on GNAC and other cases to say, oh, well, we couldn't appeal right away.

[00:28:15] Speaker 00:
Or you could have tried to appeal, maybe had the appeal dismissed, or you could have sought an interlocutory appeal.

[00:28:20] Speaker 00:
I mean, there were a lot of things to seek relief rather than just assuming it wasn't a final order.

[00:28:35] Speaker 02:
So I would submit that, well, I'm trying to think of how to best address that, obviously.

[00:28:50] Speaker 02:
And I know that I am out of time, but it was very, very clear in the Ninth Circuit cases.

[00:28:57] Speaker 02:
And Ritzen, like I said, cited approvingly a Ninth Circuit case saying that the

[00:29:04] Speaker 02:
It's a final order when you talk about stay relief.

[00:29:07] Speaker 02:
And the Ninth Circuit cases have always segregated the abstention because, yes, it does include some automatic stay.

[00:29:15] Speaker 02:
There's also other things that go along with it.

[00:29:17] Speaker 00:
So you concluded, or whoever was counsel at the time, concluded that

[00:29:21] Speaker 00:
This order was not an order granting or denying relief from stay.

[00:29:24] Speaker 00:
It was something different.

[00:29:26] Speaker 00:
Right.

[00:29:26] Speaker 02:
Even though the stay is inherently wrapped up with the abstention question, because it was an abstention question, and it was, like he said, I wasn't counseled, but it was 100% research.

[00:29:38] Speaker 02:
He wanted to appeal immediately.

[00:29:39] Speaker 02:
And under the law that was there, because abstention is treated so differently in the Ninth Circuit than just a straight up or down stay question,

[00:29:48] Speaker 02:
then it was determined that they would have to wait and go through an entire trial for it.

[00:29:54] Speaker 01:
I think we could talk about this for a long time.

[00:29:56] Speaker 01:
This is a law school questionnaire par excellence.

[00:30:01] Speaker 01:
This would be a great question, wouldn't it?

[00:30:03] Speaker 01:
Anyway, we thank you both for your helpful argument.

[00:30:07] Speaker 01:
The case just argued is submitted.