United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on a motion to reinstate an
appeal (ECF No. 104) filed by Defendants David and Julie
Cargille (the "Cargilles"). For the reasons stated
herein, Defendants' motion is denied.
facts and procedural history of this matter have been set
forth in considerable detail in this Court's prior
decisions and will not be repeated here again. Only the
procedural history relevant to this motion will be discussed
short, in 2013, Plaintiff/Counterclaim Defendant Green Tree
Servicing, LLC, now known as Ditech Financial LLC
[hereinafter "Ditech"], filed a foreclosure action
against the Cargilles in New Jersey Superior Court, Chancery
Division, Mercer County. (See Joint Notice of
Removal, Ex. A, Compl., ECF No. 1-1). The foreclosure action
has spawned a flurry of motions in this Court, as well as in
federal bankruptcy court and in the U.S. Court of Appeals for
the Third Circuit.
January 24, 2019, this Court granted Ditech's motion for
reconsideration, which requested that this Court reconsider
its April 12, 2018 Order. See Green Tree Servicing, LLC
v. Cargille, No.: 15-cv-0938 (PGS)(LHG), 2019 U.S. Dist.
LEXIS 11615, at * 10-11 (D.N.J. Jan. 24, 2019); ECF No. 98.
In this Court's January 24, 2019 memorandum and opinion,
it dismissed with prejudice certain counterclaims and
dismissed without prejudice other counterclaims.
Cargille, 2019 U.S. Dist. LEXIS 11615, at *11. For
the claims that were dismissed without prejudice, this Court
ordered that the Cargilles may amend those remaining claims
within thirty days. Id. The Cargilles did not amend
their claims, and instead filed an interlocutory appeal with
the U.S. Court of Appeals for the Third Circuit on February
22, 2019. (See Notice of Interlocutory Appeal, ECF
April 18, 2019, the Third Circuit dismissed the interlocutory
appeal on procedural grounds under Federal Rule of Appellate
Procedure 10(b) and Third Circuit Local Appellate Rule
107.2(a). (Certified Order of U.S. Court of Appeals for the
Third Circuit, ECF No. 101). On May 15, 2019, the Cargilles
filed their "Motion for Reinstatement" requesting
that this Court "stay prosecution" of the Third
Circuit's appeal. (Cargilles' Motion for
Reinstatement, 8, ECF No. 104). Specifically, because the
Bankruptcy Court issued an Interim Order modifying the
automatic stay on a limited basis, the Cargilles state that
they have "shown good cause ... for reinstatement of the
appeal pending the Stay in Bankruptcy court, to enable
prosecution of the appeal at such time as the Stay is
lifted." (Id. at ¶¶ 18, 7). The
Bankruptcy Court's Interim Order stated:
[T]he automatic stay shall remain in full force and effect
with respect to any and all other pending or future claims,
cross-claims, third-party claims, and counterclaims by
Interested Parties related to judicial and non-judicial
foreclosure and eviction proceedings, including with respect
to (a) monetary relief of any kind or any nature against the
Debtors, (b) claims of recoupment or setoff, (c) relief that
if granted would affect the amount, validity, and/or priority
of lien(s) on property owned or serviced by the Debtors, and
(d) actions asserted in the form of a class action or
(Id. at ¶ 7).
to Ditech, the day after the Cargilles filed its
reinstatement motion with this Court, it also filed an
application for reinstatement with the Third Circuit. (Ditech
Opp'n, 3, ECF No. 107). The Third Circuit, according to
Ditech, entered a Noncompliance Order because of deficiencies
in the Cargilles' motion for reinstatement.
Court lacks jurisdiction to hear this case because the
Cargilles are requesting that this Court rule on an order
issued by the Third Circuit. Third Circuit Local Appellate
Rule 107.2 describes the procedures for dismissal for an
appellant's failure to prosecute. The Rule states that
when an appellant fails to comply with the Federal Rules of
Appellate Procedure or the Third Circuit's Local
Appellate Rules, the appeal may be dismissed for want of
prosecution unless the appellant remedies the deficiency
within the time period permitted under the Rule. LAR
107.2(a). The Rule then states that "[t]he appellant is
not entitled to remedy the deficiency after the appeal is
dismissed except by order of the court," which
refers to the Court of Appeals of the Third Circuit, not any
District Court. Id. (emphasis added). Accordingly,
this Court cannot rule on the Third Circuit's dismissal
order of the Cargilles' interlocutory appeal because this
Court lacks jurisdiction to do so.
Sections 1330 to 1369 of Title 28, Chapter 85 of the U.S.
Code delineate the circumstances in which federal courts have
jurisdiction, and dismissal orders of interlocutory appeals
are not included in the federal courts' jurisdiction.
See 28 U.S.C. §§ 1330 - 1369. The Third
Circuit's Order also did not direct this Court to take
any action or indicate in any way that this Court has
jurisdiction regarding the Cargilles' interlocutory
appeal. Any application to reinstate the ...