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In re Emiabata

United States District Court, W.D. Washington, Seattle

June 14, 2018

In re PHILLIP O. EMIABATA, Appellant,
v.
SPECIALIZED LOAN SERVICING, LLC, and AVAIL 1 LLC, Appellees.

          ORDER ON MOTION TO VACATE DISMISSAL

          Honorable Marsha J. Pechman United States Senior District Court Judge

         The Court has received and reviewed Appellant's Motion for Court to Vacate Its Order Dated April 17, 2018 Dismissing Appellant Appeal (Dkt. No. 26), Motion for Enlargement of Time (Dkt. No. 27), Motion “Pursuant to Rule 6 Computing Time for Motion Papers” (Dkt. No. 28), all attached declarations and exhibits, and relevant portions of the record, and rules as follows:

         IT IS ORDERED that the motion to vacate the dismissal order is GRANTED; the previously-entered dismissal will be VACATED and Appellant will be given a further opportunity to respond to the Court's Order to Show Cause (Dkt. No. 22).

         IT IS FURTHER ORDERED that Appellant has 21 days from the entry of this order to respond to the Order to Show Cause as to why his matter should not be dismissed for failure to pay the filing fee and failure to file a Statement of Issues.

         On March 30, 2018, this Court entered an Order to Show Cause requiring Appellant to show cause why his matter should not be dismissed for failing to (1) pay a filing fee or (2) file a Statement of Issues. Appellant was ordered to show cause by April 13, 2018. Dkt. No. 22. When the Court did not receive any response from Appellant, an order of dismissal without prejudice was entered on April 17, 2018. Dkt. No. 23.

         On May 8, 2018, the Court received the above-entitled motion from Appellant. In that motion, he outlined the following reasons why the dismissal of his appeal should be vacated:

         1. He did not receive the Order to Show Cause (which was entered in the court docket on March 30, 2018), until April 12, 2018, only a day before the deadline for his response. (Appellant attached a copy of the envelope in which his copy of the Order to Show Cause arrived which reflects that the document was not mailed from Seattle until April 5, 2018; Dkt. No. 26 at 6.)

         2. He responded to the late-received Order by sending a “motion for enlargement of time” by overnight mail on April 17, 2018, but that pleading was never docketed. (Appellant attached a copy of a Priority Mail Express receipt from the U.S. Post Office for a document addressed to the U.S. Courthouse, 700 Stewart Street, Seattle, Washington 98101; Id. at 8.)

         3. At the time that the Court entered the dismissal, Appellant's appeal of a previous ruling by this Court in his case was still pending at the Ninth Circuit Court of Appeals. It appears that Appellant believes this fact divested this Court of jurisdiction to dismiss his case.

         The Court will address Appellant's points in reverse order. Regarding his “appeal” to the Ninth Circuit, a brief procedural history is in order. On January 17, 2018, this Court denied Appellant's Motion for a Stay of Enforcement of Judgment, wherein Appellant sought to stay the effect of the judgment of the Bankruptcy Court from which he was appealing. (Dkt. Nos. 8, 11.) On January 29, 2018, Appellant simultaneously filed a Motion for Recusal of this Court (Dkt. No. 14)[1] and a Notice of Appeal to the Ninth Circuit. The Notice announced Appellant's intention to appeal the denial of his motion to stay enforcement of the judgment. (Dkt. No. 15.)

         What Appellant was attempting was an “interlocutory appeal;” in other words, an appeal which is filed while the lower court case is still pending. Orders granting or denying stays of legal proceedings are not automatically appealable under 28 U.S.C. § 1291(a)(1). Outside of an automatic right to an interlocutory appeal, there are three ways to successfully file one. One of them does not require the permission of the lower court and is called a “collateral order appeal.” In order to file a collateral order appeal, three conditions must be met. The order from which the appeal is taken must:

(1) conclusively determine the disputed question,
(2) resolve an important issue completely separate from the merits of ...

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