Case No. 13-10120

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

In the Matter of: ONDOVA LIMITED COMPANY,

Debtor.

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PETFINDERS, L.L.C.,

Appellant

CHAPTER 11 TRUSTEE DANIEL J. SHERMAN,

Appellee

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Cons. w/ 13-10121

In the Matter of: ONDOVA LIMITED COMPANY,

Debtor.

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JEFFREY BARON,

Appellant

DANIEL J. SHERMAN,

Appellee

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Case: 13-10121 Document: 00512627267 Page: 1 Date Filed: 05/12/2014

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Cons. w/ 13-10122

In the Matter of: ONDOVA LIMITED COMPANY,

Debtor.

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GARY N. SCHEPPS,

Appellant

DANIEL J. SHERMAN, Chapter 11 Trustee

Appellee

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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

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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)

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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

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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

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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

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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

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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

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Appellee Daniel J. Sherman (“Trustee” or “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.

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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”).

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.

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).

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.

ROA.268.

ROA.49.

ROA.187. The Trustee’s Complaint and Amended Complaint are APSR E and F.

ROA.626.

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5. The Bankruptcy Court approved the Trustee’s request to sell

Servers.com on November 14, 2011.

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”).

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.

6. On January 7, 2013, the District Court entered its Order Closing

Case in the District Court Appeal (the “Order”),

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.

ROA.160.

ROA.161.

ROA.5.

ROA.1566.

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7. On February 6, 2013 Baron filed his Notice of Appeal,

initiating the above-captioned appeal of the Order.

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

ROA.5.

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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

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“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 has “nothing 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 a “final” 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.

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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

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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

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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

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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

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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.

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