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In Re David J. Fitzpatrick v. David J. Fitzpatrick

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


October 25, 2011

IN RE DAVID J. FITZPATRICK,
DEBTOR.
KENNETH J. ALLEN & ASSOCIATES, PLAINTIFF,
v.
DAVID J. FITZPATRICK, DEFENDANT.

Adv. Pro. No. 10-02210

The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM ORDER

Kenneth J. Allen & Associates, P.C. ("Allen") has just filed a Notice of Appeal ("Notice") in connection with Adversary Proceeding 10-02210 in the Chapter 7 bankruptcy of debtor David Fitzpatrick (Case No. 09 B 42759). Relatedly Allen's counsel have noticed up a motion for presentment today, seeking to stay proceedings in the Bankruptcy Court pending resolution of the claimed appeal. Because the putative appeal is from a clearly non-appealable order and no good reason appears to call for entertaining the interlocutory order at issue, this Court dismisses the appeal sua sponte.

Although appellant's counsel mistakenly labels the appeal as taken under 28 U.S.C. §153(a),*fn1 that is clearly a typographical error--Section 158(a) is obviously meant instead. But just as the denial of a summary judgment motion is non-final and non-appealable in ordinary civil litigation, Section 158(a)(1) confers district court jurisdiction "to hear appeals (1) from final judgments, orders and decrees." Indeed, Allen's counsel has been seeking to stave off the trial of the matter--most recently reset to October 26, 2011 (Bankruptcy Court Dkt. 58)--and the most recent docket entry in that court (Dkt. 67, entered on October 20) denied the putative appellant's motion to stay pending this appeal.*fn2

This Court declines the invitation to second-guess the Bankruptcy Judge at this interim stage in the proceedings. When a final order is issued in the adversary proceeding, it will be time enough to entertain a possible appeal. As stated at the outset, then, the purported appeal and this action are dismissed for lack of jurisdiction, and the motions for leave to appeal and to stay are denied as moot.


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