Case No. 13-10120
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
In the Matter of: ONDOVA LIMITED COMPANY,
Debtor.
-------------------------------------------------
PETFINDERS, L.L.C.,
Appellant
v.
CHAPTER 11 TRUSTEE DANIEL J. SHERMAN,
Appellee
----------------------------------------------------------------------------------------------------
Cons. w/ 13-10121
In the Matter of: ONDOVA LIMITED COMPANY,
Debtor.
-------------------------------------------------
JEFFREY BARON,
Appellant
v.
DANIEL J. SHERMAN,
Appellee
----------------------------------------------------------------------------------------------------
Case: 13-10121 Document: 00512627267 Page: 1 Date Filed: 05/12/2014
-ii-
Cons. w/ 13-10122
In the Matter of: ONDOVA LIMITED COMPANY,
Debtor.
-------------------------------------------------
GARY N. SCHEPPS,
Appellant
v.
DANIEL J. SHERMAN, Chapter 11 Trustee
Appellee
----------------------------------------------------------------------------------------------------
Appeal from the United States District Court
for the Northern District of Texas, Dallas Division,
The Honorable Royal Ferguson, Presiding
APPELLEE'S MOTION TO DISMISS
APPEAL FOR LACK OF APPELLATE JURISDICTION
AND, IN THE ALTERNATIVE, TO STRIKE APPELLANT’S
BRIEF FOR LACK OF APPELLATE JURISDICTION
Raymond J. Urbanik, Esq.
Isaac J. Brown, Esq.
MUNSCH HARDT KOPF & HARR, P.C.
500 North Akard Street
Suite 3800
Dallas, Texas 75201-6659
Telephone: (214) 855-7500
Facsimile: (214) 855-7584
ATTORNEYS FOR APPELLEE
Case: 13-10121 Document: 00512627267 Page: 2 Date Filed: 05/12/2014
-iii-
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case:
1. Appellant:
Jeffrey Baron
Counsel for the Appellant:
Stephen R. Cochell, Esq.
5555 West Loop South, Ste. 200
Bellaire, Texas 77401
Telephone: (832) 767-1065
Facsimile: (832) 767-1686
2. Appellee:
Daniel J. Sherman, Chapter 11 Trustee
Counsel for the Appellee:
Raymond J. Urbanik, Esq.
Isaac J. Brown, Esq.
MUNSCH HARDT KOPF & HARR, P.C.
500 North Akard Street
Suite 3800
Dallas, Texas 75201-6659
Telephone: (214) 855-7500
Facsimile: (214) 855-7584
3. Persons with Indirect Interests in Appeal:
Jeffrey N. Rothleder
representing Discovery Communications
Arent Fox LLP
1050 Connecticut Avenue, NW
Washington, D.C. 20036-5339
Daniel J. Sherman
representing Daniel J. Sherman (Trustee) (Appellee)
Case: 13-10121 Document: 00512627267 Page: 3 Date Filed: 05/12/2014
-iv-
Sherman & Yaquinto
509 N. Montclair Ave.
Dallas, TX 75208-5498
Charla Aldous
representing Aldous Law Firm
Aldous Law Firm
2305 Cedar Springs, Suite 300
Dallas, TX 75201
Mark Edward Andrews
representing Grupo Andrea, S.A. de C.V.
Cox Smith Matthews Incorporated
1201 Elm Street, Suite 3300
Dallas, TX 75270
Stanley D. Broome
formerly representing Jeffrey Baron
The Broome Law Firm, PLLC
105 Decker Court
Suite 850
Irving, TX 75062
Gerrit M. Pronske
representing Pronske & Patel, PC
2200 Ross Avenue
Suite 5350
Dallas, TX 75201
Craig Alan Capua
formally representing Iguana Consulting, LLC,
Novo Point, LLC, Quantec, LLC
West & Associates, LLP
320 South R.L. Thornton Fwy., Ste. 300
Dallas, TX 75203
Jeanne Crandall
representing Reyna Hinds & Crandall
Reyna, Hinds & Crandall
Case: 13-10121 Document: 00512627267 Page: 4 Date Filed: 05/12/2014
-v-
1201 Elm Street, Suite 3850
Dallas, TX 75270
Angela B. Degeyter
representing VeriSign, Inc.
Vinson & Elkins, LLP
2001 Ross Ave., Ste. 3700
Dallas, TX 75201-2975
James Michael Eckels
7505 John Carpenter Freeway
Dallas, TX 75247
William Lloyd Foreman
representing Owens, Clary & Aiken, LLP
Owens, Clary & Aiken, L.L.P.
700 N. Pearl St., No. 1600
Dallas, TX 75201
Michael A. Grow
representing Grupo Andrea, S.A. de C.V.
Arent Fox LLP
1050 Connecticut Ave, NW
Washington, DC 20036
Michael S. Haynes
representing Peter S. Vogel
Akin Gump Strauss
Hauer & Feld LLP
1700 Pacific Avenue
Suite 4100
Dallas, TX 75201
Melissa S. Hayward
representing Manila Industries, Inc. ;
Netsphere, Inc.; Franklin Skierski Lovall Hayward LLP
10501 N. Central Expwy., Ste. 106
Dallas, TX 75231
Case: 13-10121 Document: 00512627267 Page: 5 Date Filed: 05/12/2014
-vi-
Edwin Paul Keiffer
Formally representing Ondova Limited Company;
Wright Ginsberg Wright Ginsberg Brusilow P.C.
Republic Center, Suite 4150
325 North St. Paul Street
Dallas, TX 75201
Bradley Clay Knapp
representing Locke Lord Bissell & Liddell LLP
Locke Lord Bissell & Liddell
2200 Ross Avenue, Suite 2200
Dallas, TX 75201
Ryan Kenneth Lurich representing Friedman & Feiger,
L.L.P.
Friedman & Feiger, L.L.P.
5301 Spring Valley Rd. Ste 200
Dallas, TX 75254
Gary G. Lyon
representing Gary G. Lyon
Gary G. Lyon, Attorney at Law
P.O. Box 1227
Anna, TX 75409-1227
Dennis Oliver Olson
Formally representing Novo Point, LLC
Olson, Nicoud & Gueck, LLP
1201 Main Street, Suite 2470
Dallas, TX 75202
Franklin H. Perry
representing Payne and Blanchard, LLP; HCB,
LLC;
700 N. Pearl St.
Ste. 500, North Tower
Dallas, TX 75201-7424
Patrick W. Powers and Mark Taylor
representing Powers Taylor LLP
Case: 13-10121 Document: 00512627267 Page: 6 Date Filed: 05/12/2014
-vii-
Cash Powers Taylor, LLP
Powers Taylor LLP
8150 N. Central Expressway, Suite 1575
Dallas, TX 75206
Jeffrey H. Rasansky
representing Rasansky Law Firm
Rasansky Law Firm
2525 McKinnon, Suite 725
Dallas, TX 75201
David D. Ritter
representing Grupo Andrea, S.A. de C.V.
Kane, Russell, Coleman & Logan
3700 Thanksgiving Tower
1601 Elm St.
Dallas, TX 75201-7207
Alec P. Rosenberg
representing Grupo Andrea, S.A. de C.V.
Arent Fox LLP
1050 Connecticut Ave N.W.
Washington, DC 20036
202-857-6395
Deirdre B. Ruckman
representing Peter S. Vogel
Gardere,Wynne & Sewell
1601 Elm St., Suite 3000
Dallas, TX 75201
Eric Lopez Schnabel
representing VeriSign, Inc.
Dorsey & Witney (Delaware) LLP
300 Delaware Ave., Ste. 1010
Wilmington, DE 19801
Eric J. Taube
representing Asia Trust Limited
Case: 13-10121 Document: 00512627267 Page: 7 Date Filed: 05/12/2014
-viii-
100 Congress Ave., 18th Floor
Austin, TX 78701
Martin Keith Thomas
representing Jeffrey Baron
Thomas & Sobol
P.O. Box 36528
Dallas, TX 75235
Certified By: /s/ Raymond J. Urbanik_______
Raymond J. Urbanik, Esq.
Counsel for the Appellee
Case: 13-10121 Document: 00512627267 Page: 8 Date Filed: 05/12/2014
1
Appellee Daniel J. Sherman (“Trusteeor Appellee), the trustee in
the underlying Bankruptcy Case, hereby files this Motion to Dismiss Appeal for
Lack of Appellate Jurisdiction and, in the Alternative, to Strike Appellant’s Brief
for Lack of Appellate Jurisdiction (the "Motion"), and respectfully states as
follows:
I. RELIEF SOUGHT
1. The Trustee requests that the Court dismiss this appeal for lack
of appellate jurisdiction in accordance with 28 U.S.C. §§ 158 and 1291. Jeffrey
Baron (“Baron”) is appealing an order administratively closing a district court
case. This type of order is not a final order and, as such, is not an act of
jurisdictional significance with respect to the underlying issues. Because the
District Court has not ruled on the underlying issues, this Court does not have
jurisdiction and the appeal should be dismissed.
2. In the alternative, if the Court decides it does have jurisdiction
over this appeal, the Trustee requests that the Court strike Appellant’s Brief in its
entirety. Pursuant to 28 U.S.C. §§ 158 and 1291, this Court lacks jurisdiction to
adjudicate any of the underlying substantive issues in the District Court Appeal
because the order administratively closing the case did not address or decide any of
those issues. The material briefed by Baron was not the subject of a final order by
the District Court.
Case: 13-10121 Document: 00512627267 Page: 9 Date Filed: 05/12/2014
2
II. BACKGROUND
3. This appeal originates from a dispute over the ownership, and
corresponding right to sell, the Internet domain name Servers.com. There were a
series of court cases over ownership of Servers.com between Ondova Limited
Company (“Ondova”), the entity in the underlying bankruptcy case, and an
individual named Mike Emke (“Emke”). On July 6, 2009, a settlement agreement
was entered into between the two parties (the “Settlement Agreement”).
1
4. Ondova later filed for Chapter 11 bankruptcy protection on July
27, 2009, in the United States Bankruptcy Court for the Northern District of Texas,
Dallas Division (the “Bankruptcy Court”), and the Appellee became the Chapter
11 trustee of Ondova by order entered on September 17, 2009.
2
Because of
disagreements between the Trustee and Emke with respect to the Settlement
Agreement, an adversary proceeding was filed by the Trustee on March 22, 2011
(Case No. 11-03181).
3
The Bankruptcy Court conducted a trial and, on October 18,
2011, entered its Findings of Fact, Conclusions of Law and Order by which it
found that Ondova had an undivided equitable interest in Servers.com, and the
domain name could be sold by Appellee.
4
1
ROA.268.
2
ROA.49.
3
ROA.187. The Trustee’s Complaint and Amended Complaint are APSR E and F.
4
ROA.626.
Case: 13-10121 Document: 00512627267 Page: 10 Date Filed: 05/12/2014
3
5. The Bankruptcy Court approved the Trustee’s request to sell
Servers.com on November 14, 2011.
5
Baron filed his Notice of Appeal of the same
on November 28, 2011, which appeal was docketed as Case No. 12-cv-00367 (the
District Court Appeal”) in the District Court for the Northern District of Texas
(the “District Court”).
6
As of May 25, 2012, all briefing, including supplemental
letter briefs on domain name ownership requested by the District Court Judge, was
submitted in the District Court Appeal.
7
6. On January 7, 2013, the District Court entered its Order Closing
Case in the District Court Appeal (the “Order”),
8
noting that, because of the Fifth
Circuit opinion in an unrelated case, No. 10-11202, “there are no further issues for
[the District Court] to address concerning the sale of Servers.com. Accordingly,
the Clerk of the court is instructed to CLOSE this case.(emphasis original). The
Order was entered as Docket Number 22 in the District Court Case with the
heading: “Order Administratively Closing Case. Nothing in the District Court’s
Order of January 7, 2013 addressed or ruled on the merits of Baron’s appeal from
the Bankruptcy Court or any of the matters raised in the parties’ briefing.
5
ROA.160.
6
ROA.161.
7
ROA.5.
8
ROA.1566.
Case: 13-10121 Document: 00512627267 Page: 11 Date Filed: 05/12/2014
4
7. On February 6, 2013 Baron filed his Notice of Appeal,
initiating the above-captioned appeal of the Order.
9
III. SUMMARY OF BASIS FOR DISMISSAL
8. Pursuant to 28 U.S.C. §§ 158 and 1291 this Court does not
possess jurisdiction to review non-final orders of the District Court. Applicable
case law holds that orders administratively closing cases are not final. They are not
of jurisdictional significance with respect to the substantive issues of the appeal.
9. Baron’s Notice of Appeal only pertains to Docket No. 22, the
Order administratively closing the case. By both the content of the Order and the
clerk’s entry on the record, that Order is an administrative closure only. This Court
is thus without jurisdiction and the appeal should be dismissed. Baron’s relief lies
in filing a Motion to Reopen the District Court Case. The Trustee believes that an
appeal solely on matters this Court lacks jurisdiction over is frivolous and should
be dismissed per 5th Circuit Rule 42.2.
10. If the Court determines that has jurisdiction over the Order in
some manner, Baron’s Brief should still be struck. Baron’s Brief addresses the
substantive matters of the District Court Appeal (an order of the Bankruptcy Court
approving the sale of Servers.com), none of which were decided by the District
Court. Because the Order simply administratively closed the case, jurisdiction over
9
ROA.5.
Case: 13-10121 Document: 00512627267 Page: 12 Date Filed: 05/12/2014
5
those issues has not been transferred to this Court and briefing on those matters is
immaterial to this appeal. Accordingly, in the alternative to dismissal of the appeal,
the Court should strike Appellant’s Brief in its entirety and order Baron to submit a
new brief addressing matters related to an appeal of Docket No. 22.
IV. DISCUSSION
A. The Court Should Dismiss the Appeal for Lack of Jurisdiction
a. The Order was Not a Final Decision
11. Both 28 U.S.C. §§ 158 and 1291 confer appellate jurisdiction
on this Court over appeals from “final decisions” of the district courts. A district
court’s order administratively closing a case is not a final decision. Because
Baron’s Notice of Appeal requests this Court to review a non-final order, the Court
should dismiss the appeal.
12. The Fifth Circuit, along with other circuit courts, has held that
orders administratively closing cases are not appealable final decisions. See Mire v.
Full Spectrum Lending Inc., 389 F.3d 163, 167 (5th Cir. 2004) (holding that an
administrative closure “is the functional equivalent of a stay, not a dismissal and
thus not an appealable order”); S. La. Cement, Inc. v. Van Aalst Bulk Handling,
B.V., 383 F.3d 297, 302 (5th Cir. 2004) (holding that “administratively closing a
case is not a dismissal or a final decision”); Am. Heritage Life Ins. Co. v. Orr, 294
F.3d 702, 715 (5th Cir. 2002) (Dennis, J., concurring) (clarifying that an
Case: 13-10121 Document: 00512627267 Page: 13 Date Filed: 05/12/2014
6
“administrative closure . . . has no jurisdictional significance”); Dees v. Billy, 394
F.3d 1290, 1294 (9th Cir. 2005) (noting that, while it was a new issue to the Ninth
Circuit, “those circuits that have confronted the issue have unanimously echoed the
Fifth Circuit’s conclusion that an administrative closing has no jurisdictional
effect”); Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389, 392 (1st Cir.1999)
(“Properly understood, an administrative closing has no effect other than to remove
a case from the court's active docket and permit the transfer of records associated
with the case to an appropriate storage repository.”).
13. In 2002 the Fifth Circuit held, in American Heritage, that when
a district court that hasnothing before it but whether to compel arbitration and
stay state court proceedings” rules on those matters and administratively closes the
case it will be a “final” decision for the purposes of Section 16 of the Federal
Arbitration Act. See Am. Heritage, 294 F.3d at 708; 9 U.S.C. § 16 (providing that
an appeal may be taken from “a final decision with respect to an arbitration that is
subject to this title” (emphasis added)). The Court based its holding on the fact that
a series of district court rulings “effectively end[ed] the entire matter on the merits”
and, per the traditional definition of afinal” decision, left only the enforcement of
the judgment. See id. Thus, if every substantive issue has been ruled on, then an
order administratively closing a case takes on the character of a final order.
Case: 13-10121 Document: 00512627267 Page: 14 Date Filed: 05/12/2014
7
14. The concurring opinion to American Heritage clarified that the
administrative closure itself “has no jurisdictional significance” and to hold
otherwise “would be attributing jurisdictional significance to a designation not
sanctioned by the Federal Rules.See id. at 715 (Dennis, J., concurring). American
Heritage has since been frequently cited for the proposition that an order
administratively closing a case that does not dispose of the entirety of the
substantive material is not an appealable final decision. See S. La. Cement, Inc.,
383 F.3d at 302; Mire, 389 F.3d at 165-66; Dees, 394 F.3d at 1293-94 (providing a
review of relevant Fifth Circuit cases on the issue of whether administrative
closures could be appealed).
15. In the Third Circuit case Penn West Associates, Inc. v. Cohen,
the appellate court examined whether it had jurisdiction under a substantially
similar district court order to the one at issue in this appeal and held that it was not
a final decisions. See Penn W. Assocs., Inc. v. Cohen, 371 F.3d 118 (3d Cir. 2004);
see also Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d 240 (3d Cir. 2013)
(also examining a district court order with the language that the case “be marked
CLOSED” and “reject[ing] . . . attempts to characterize an administrative closing
as a final order in disguise.”).
16. The relevant portion of the district court order read: “there are
no further matters pending before the Court, IT IS HEREBY ORDERED that the
Case: 13-10121 Document: 00512627267 Page: 15 Date Filed: 05/12/2014
8
Clerk of the Court mark the above captioned matter closed.” Penn W. Assocs., Inc.,
371 F.3d at 121. The Third Circuit held that this order “did not resolve, or even
purport to resolve, any of the claims . . . presented to the District Court. Rather, its
purpose was solely to direct the Clerk of the Court to mark . . . [the] case as
closed.” Id. at 125. As such, it was “an administrative closing that has no legal
consequence other than to remove that case from the district court’s active docket.”
Id. Thus the Third Circuit, faced with a district court order in substantially the
same language as the order in this case, and citing, in part, this Court’s decision in
American Heritage, held that, even where the district court who made the order
thought otherwise, an administrative closing order is not a final decision.
17. There is clear judicial precedent in this Circuit that only when
an administrative closing is combined with the substantive disposition of each and
every matter on appeal does it become a final order. See Am. Heritage, 294 F.3d at
708. The Order on appeal here dealt with none of the substantive matters and was
marked an order “Administratively Closing” the case on the docket. This Court
should dismiss the appeal for lack of appellate jurisdiction over this non-final
decision.
b. The Court Should Strike Baron’s Brief
18. All of the subject matter briefed by the Appellant relates to
substantive matters form the underlying appeal for which the District Court has
Case: 13-10121 Document: 00512627267 Page: 16 Date Filed: 05/12/2014
9
made no final decision or ruling. Because of this, even if the Court finds that it
does have jurisdiction over this appeal, the Court still does not have appellate
jurisdiction over the matters briefed. Accordingly, the Court should strike the
Appellant’s Brief in its entirety.
19. This Court, in Ali v. Quarterman, held that “the appellate court
may decide the merits so long as concerned only with the order from which the
appeal is taken.” 607 F.3d 1046, 1048 (5th Cir. 2010). Here, the appeal was taken
from the Order administratively closing the case; an order that contained no ruling
on any of the matters or issues briefed by the Trustee. In Ali, the Court only had
jurisdiction because the appeal had to do with the denial of injunctive relief, and
the order administratively closing the case was “inextricably intertwined.” See id.
at 1048.
20. For the reasons and based on the case law already stated, this
Court does not have jurisdiction over the issues briefed by the Appellant. If the
Court does not dismiss the appeal it should strike the Appellant’s Brief and order
new briefing on such subject matter as the Court considers it to have jurisdiction
over.
V. PRAYER
WHEREFORE, PREMISES CONSIDERED, the Trustee respectfully
request that the Court enter an order: (i) dismissing the Appeal in its entirety for
Case: 13-10121 Document: 00512627267 Page: 17 Date Filed: 05/12/2014
10
lack of appellate jurisdiction; (ii) alternatively, striking Baron’s Appellant’s Brief
in its entirety; (ii) awarding the Trustee his attorneys' fees and costs incurred in this
Appeal and this Motion; and (iv) granting to the Trustee all such other and further
relief to which they may be justly entitled either at law or in equity.
Respectfully submitted this 12th day of May, 2014.
MUNSCH HARDT KOPF & HARR, P.C.
By: /s/ Raymond J. Urbanik
Raymond J. Urbanik, Esq.
Texas Bar No. 20414050
Isaac J. Brown, Esq.
Texas Bar No. 24087219
3800 Lincoln Plaza
500 N. Akard St.
Dallas, Texas 75201-6659
Telephone: (214) 855-7500
Facsimile: (214) 855-7584
E-mail: rurbanik@munsch.com
E-mail: ibrown@munsch.com
ATTORNEYS FOR APELLEE,
DANIEL J. SHERMAN
Case: 13-10121 Document: 00512627267 Page: 18 Date Filed: 05/12/2014
11
CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on this the 12th day of May, 2014, he
caused a true and correct copy of this Motion to be served on Counsel for
Appellant.
Stephen Rudolph Cochell
The Cochell Law Firm
7026 Old Katy Road, Suite 259
Houston, TX 77024
srcochell@cochellfirm.com
By: /s/ Raymond J. Urbanik
Raymond J. Urbanik, Esq.
CERTIFICATE OF CONFERENCE
The undersigned hereby certifies that he contacted Stephen R. Cochell to
determine if Appellant consented to or opposed this Motion on May 12th, 2014.
Mr. Cochell has not responded as of the time this Motion was filed.
/s/ Raymond J. Urbanik
Raymond J. Urbanik, Esq.
Case: 13-10121 Document: 00512627267 Page: 19 Date Filed: 05/12/2014

Leave a Reply