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In re Bertoli

filed: February 26, 1987.


On Appeal from the United States District Court for the District of New Jersey, Civil No. 85-4324.

Author: Becker


BEFORE: HIGGINBOTHAM and BECKER, Circuit Judges, and DUMBAULD, District Judge,*fn*

BECKER, Circuit Judge.

This appeal presents two discrete questions in the jurisprudence of interlocutory appeals. First, does a motion to the district court for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) suffice to perfect the appeal in the absence of a formally filed notice of appeal? Second, under the 1984 amendments to the bankruptcy code, may a district court hear an interlocutory appeal from the bankruptcy court without certification by the bankruptcy judge? Because we answer both questions in the affirmative, we must also decide whether the district court correctly dismissed the plaintiff-appellant's claims because they were barred by the res judicata effect of a state court judgment. We agree that the claims were barred by res judicata; hence we affirm the district court's judgment.


This appeal has its roots in a tangled adversary proceeding in the bankruptcy court. The plaintiff, John Bertoli (hereinafter Bertoli), sought to recover various interests in the estate of his brother Richard Bertoli (hereinafter Richard), now administered in Chapter 11 by Bernard D'Avella, Jr., as trustee. Bertoli also sought a declaratory judgment invalidating a New Jersey state court's decree that transferred property to Richard's estate from a partnership of which Bertoli was general partner. Cameron MacRae, III, trustee for Executive Securities, a corporation with claims against the estate, intervened as a defendant.

D'Avella and MacRae together moved for dismissal of the suit on the grounds that the claims were barred by the res judicata effect of the New Jersey adjudication. The bankruptcy judge denied the motion and refused to certify her decision for interlocutory appeal. Despite this refusal, D'Avella and MacRae took an interlocutory appeal to the district court.

Applying the standards that govern interlocutory appeals to this court under 28 U.S.C. § 1292(b), the district court accepted the appeal. Specifically, the district court found: (1) that the appeal presented controlling questions of law on which there were substantial grounds for difference of opinion, and (2) that an immediate appeal from the order would materially advance the ultimate termination of the litigation. On the merits, the district court reversed and entered an order remanding the case to the bankruptcy court for dismissal of all claims.

The district court entered its order on March 6, 1986. Bertoli filed no notice of appeal to this court during the thirty day period following the judgment allowed by Rule 4(a)(1) of the Federal Rules of Appellate Procedure,*fn1 Instead, on April 4, 1986 (within this thirty day period), Bertoli filed a motion and supporting brief in the district court for certification of an interlocutory appeal to this Court pursuant to 28 U.S.C. § 1292(b). D'Avella and MacRae opposed this motion on the ground that the district court's order of March 6, 1986 was a final disposition oft he adversary proceeding and entitled Bertoli to appeal as of right.

The district court heard oral argument on April 28, 1986, at which it indicated its agreement that the March 6 order was a final disposition. Bertoli then moved, unopposed, for an extension of time within which to file his appeal in accordance with Appellate Rule 4(a)(5). The district court agreed and signed an order submitted by Bertoli on May 9, 1986 purporting to extend the time to appeal on May 29, 1986, within the time provided by the district court's order,*fn2

Under Rule 4(a)(5), the district court has the authority, on a showing of excusable neglect, to extend the notice of appeal period only to the later of thirty days after the end of the original notice of appeal period or ten days after the district court grants the extension. In this case, thirty days after the original filing deadline was May 7, and ten days after the extension order was May 19. Bertoli's official notice of appeal was therefore filed ten days after the time limitations provided in the rule.

Noting that Rule 4(a) has been characterized as both mandatory and jurisdictional, see Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257, 264, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978); United States v. McKnight, 593 F.2d 230, 231 (3d Cir. 1979), D'Avella and MacRae have moved to dismiss the appeal. Bertoli rejoins that his § 1292(b) motion within the period provided by Rule 4(a)(1) satisfies the requirements for a notice of appeal under Appellate Rule 3(c). The motions panel referred this issue to us for consideration along with Bertoli's challenge to the district court's judgment.

Assuming his appeal is properly before us, Bertoli claims that the district court's decision should be reversed because the district court lacked jurisdiction to to entertain an interlocutory appeal without certification by the bankruptcy judge. Bertoli also challenges the ...

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