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In Holmes-Diltz v Sosne (In re Allen), 772 Fed. App'x 405 (8th Cir. 2019), the Eighth Circuit dismissed an appeal of the District Court for the Eastern District of Missouri’s decision dismissing the appellant’s interlocutory appeal and denied the appellant’s mandamus request. The interlocutory appeal was dismissed due to lack of jurisdiction and the mandamus request was denied due to the lack of need for such an extraordinary request.

The background for this four-sentence Eighth Circuit decision is revealing. The debtor and trustee had filed an adversary complaint against the attorney, law firm, and the non-attorney owner of the law firm that prepared and filed his bankruptcy petition for damages arising from that representation. The non-attorney owner, who has a long history of allegedly practicing law without a license, answered this complaint by filing a motion for withdrawal of reference and demand for a jury trial. The motion and jury trial demand were heard by the District Court and denied. The non-attorney owner did not appeal this decision.

The non-attorney owner filed several motions in the adversary proceeding, including: 1) a motion for ruling under Rule 7016(b)(2) that “The Court Cannot Enter a Final Order or Judgement in this Case” and 2) a motion for continuance of trial and scheduling a jury trial. The bankruptcy court denied both of these motions. In response, the non-attorney owner filed a notice of appeal and statement of election to the District Court. She also filed a motion for stay pending appeal, which the bankruptcy court denied.  The bankruptcy court then conducted a trial in  the adversary proceeding but did not issue a final order before the appeal was heard by the District Court.

The District Court denied the appeal for several reasons. In re Allen, 2018 WL 3785170 (E.D. Mo. Aug. 9, 2018). First, the District Court held that an order denying a motion for a jury trial is not a final appealable order. The non-attorney owner did not seek leave to appeal an interlocutory order and thus the District Court lacked jurisdiction. Second, since the trial occurred before her appeal was heard, it rendered her appeal moot. Last, the District Court held that Holmes-Diltz’s request for a writ of mandamus could not be granted because Rule 81 abolished these writs and they should not be used as a substitute for an appeal. City of Shorewood v. Johnson, 500 Fed. App'x 556, 557 (8th Cir. 2013).

The Eighth Circuit effectively upheld the District Court’s decision. In regards to the appeal, it cited to 28 U.S.C. §158(d)(1) and held that since there was no final judgement issued by the bankruptcy case, it had no jurisdiction to hear the appeal. Additionally, the Eighth Circuit effectively denied the writ of mandamus because Holmes-Diltz did not show that she was clearly entitled to that extraordinary request.