Viola v. Kirsch

Full title: JOSEPH JOHN VIOLA, Appellant, v. MORTON D. KIRSCH, et al., Appellees.

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Date published: Aug 18, 2016

Case No. 16-cv-02006-EMC (N.D. Cal. Aug. 18, 2016)

Opinion

Case No. 16-cv-02006-EMC

08-18-2016

JOSEPH JOHN VIOLA, Appellant, v. MORTON D. KIRSCH, et al., Appellees.

EDWARD M. CHEN United States District Judge

ORDER DENYING APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT

Docket No. 28

Previously, the Court granted Appellant Joseph John Viola's application to proceed in forma pauperis but dismissed his appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2). A final judgment was entered on July 27, 2016. See Docket Nos. 23-24 (order and judgment). Mr. Viola has now filed a motion for relief from judgment pursuant to Federal Rules of Civil Procedure 60(b)(1), (4), and (6). The Court has reviewed Mr. Viola's motion and finds it without merit.

First, the Court disagrees with Mr. Viola's assertion that the bankruptcy court lacked subject jurisdiction. As the Court stated in its prior order, 11 U.S.C. § 303 does not impose subject matter jurisdictional requirements. See Docket No. 23 (Order at 4). Mr. Viola claims that there is a circuit split as to whether § 303 is subject matter jurisdictional, but there is no such split. In In re Zarnel, 619 F.3d 156 (2d Cir. 2010), the Second Circuit concluded that its earlier opinion In re BDC 56 LLC, 330 F.3d 111 (2d Cir. 2003), was no longer good law in light of then-recent Supreme Court precedent and expressed agreement with the Eleventh Circuit in In re Trusted Net Media Holdings, LLC, 550 F.3d 1035 (11th Cir. 2008), that § 303 is not jurisdictional. In Trusted Net Media, the Eleventh Circuit specifically addressed why Canute Steamship Co. v. Pittsburgh & West Virginia Coal Co., 263 U.S. 244 (1923), did not establish that § 303 is jurisdictional.

Second, Mr. Viola's contention that this Court's § 1915(e)(2) review was too rigorous lacks any basis.

Third, Mr. Viola's arguments about his counterclaim in the adversary proceeding are not relevant to this appeal which concerns the related bankruptcy proceeding only.

Accordingly, Mr. Viola's motion for relief is hereby DENIED.

This order disposes of Docket No. 28.

IT IS SO ORDERED. Dated: August 18, 2016

/s/_________

EDWARD M. CHEN

United States District Judge