The Honorable Donald J. Stohr, United States District Judge 1

for the Eastern District of Missouri.

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___________

No. 96-2207

___________

In re: Popkin & Stern, *

*

Debtor. *

________________________

*

Nancy Fendell Lurie, *

* Appeal from the United States

Defendant - Appellant, * District Court for the

* Eastern District of Missouri.

v. * 

*

Robert J. Blackwell, *

Liquidating Trustee of the *

Popkin & Stern Liquidating *

Trust, *

*

Plaintiff - Appellee. *

___________

 Submitted: December 10, 1996

 Filed: January 31, 1997

___________

Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.

___________

BRIGHT, Circuit Judge.

 

Nancy Lurie appeals the district court's dismissal of her

1

interlocutory appeal from a bankruptcy court order denying Lurie's motion

for a jury trial. The district court dismissed Lurie's appeal for failure

to prosecute. Because the district court's
 That provision confers jurisdiction to district courts over 2

interlocutory appeals from bankruptcy courts when leave of the

court is granted.

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order is not a final judgment, we dismiss Lurie's appeal for lack of

jurisdiction.

BACKGROUND

This case arises from a bankruptcy action in which Lurie filed a

motion for a jury trial. The bankruptcy court denied that motion. 

Lurie filed an interlocutory appeal with the district court. The

district court granted Lurie leave to appeal the bankruptcy court order

pursuant to 28 U.S.C. § 158(a)(3). The district court eventually

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dismissed Lurie's appeal with prejudice for failure to prosecute within the

allotted time and for failure to comply with court orders. The district

court then denied Lurie's motion under Fed.R.Civ.P. 59(e) to alter or amend

judgment. 

Lurie raises two issues in her appeal to this court. First, she

asserts that the district court erred in dismissing her interlocutory

appeal. Second, Lurie argues that the district court erred in denying her

motion to alter or amend judgment under Rule 59(e). 

Lurie originally asserted jurisdiction for this appeal under 28

U.S.C. § 158(d) relating to appeals from final orders of district courts

to appellate courts. After we expressed concerns regarding jurisdiction,

Lurie argued jurisdiction existed under 28
 The parties were notified of our concerns regarding 3

jurisdiction by letter and were requested to address this issue

at oral argument. We also allowed the parties to file

supplemental briefing regarding the collateral order doctrine.

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U.S.C. § 1291 and the collateral order doctrine. Appellee contests

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jurisdiction. 

DISCUSSION

"Although the parties do not discuss appellate jurisdiction in their

briefs, we are nonetheless obliged to consider it." Friedman v. Melp, Ltd.

(In re Melp, Ltd.), 79 F.3d 747 (8th Cir. 1996) (citation omitted). 

Lurie's original assertion that we have jurisdiction under 28 U.S.C.

§ 158(d) is incorrect. Section 158 addresses the procedure for appeals

from bankruptcy courts and states in relevant part:

(a) The district courts of the United States shall have

jurisdiction to hear appeals 

(1) from final judgments, orders, and decrees; 

* * * * 

(3) with leave of the court, from other interlocutory

orders and decrees; . . . 

* * * * 

(d) The courts of appeals shall have jurisdiction of

appeals from all final decisions, judgments, orders, and

decrees entered under subsection (a) . . . of this section.

28 U.S.C. § 158. Accordingly, "[u]nlike the district court, which has

discretion to hear appeals from interlocutory bankruptcy court orders,

§ 158(a), our jurisdiction is limited to `appeals from all final decisions,

judgments, orders, and decrees' of the district
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court." Drewes v. St. Paul Bank for Cooperatives (In re Woods Farmers

Coop. Elevator Co.), 983 F.2d 125, 127 (8th Cir. 1993) (quoting 28 U.S.C.

§ 158(d)).

 Neither party disputes that the appeal at issue is an interlocutory

one. "For purposes of § 158(d), a determination of the district court is

not `final' unless the underlying order of the bankruptcy court is final."

Flor v. Bot Fin. Corp., 79 F.3d 281, 283 (2d Cir. 1996). An interlocutory

appeal from an order denying a motion to strike a demand for a jury trial

does not confer jurisdiction for the federal court of appeals under

§ 158(d) because neither § 158(d) "nor any other part of § 158 mentions

interlocutory orders entered by the district courts in bankruptcy."

Connecticut Nat. Bank v. Germain, 503 U.S. 250, 252 (1992). The bankruptcy

court order denying Lurie's demand for a jury trial is not a final order.

Accordingly, we lack jurisdiction under § 158(d).

Lurie raised a new basis for jurisdiction, 28 U.S.C. § 1291 and the

collateral order doctrine, during oral argument. According to § 1291, "The

courts of appeals . . . shall have jurisdiction of appeals from all final

decisions of the district courts of the United States . . . ." The appeal

at issue here is interlocutory which, as a general rule, renders § 1291

inapplicable because that provision only applies to final orders. Lurie

asserts, however, that the collateral order doctrine, a "narrow exception

to the requirement that all appeals under § 1291 await final judgment on

the merits," Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374

(1981), applies. We disagree. 

The collateral order doctrine is only utilized when a district court

order, at a minimum, meets three criteria: "It must `conclusively

determine the disputed question,' `resolve an important issue completely

separate from the merits of the action,' and `be effectively unreviewable

on appeal from a final judgment.'" 
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Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431 (1985) (quoting

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). Lurie, however,

does not demonstrate she is precluded from having the issues raised in her

appeal considered by this court after the bankruptcy court enters a final

judgment.

Lurie relies on United States v. Archer-Daniels-Midland Co., 785 F.2d

206 (8th Cir. 1986), where we held jurisdiction existed under the

collateral order doctrine to hear an appeal of a district court order

upholding the government's assignment of the same attorneys who had

participated in grand jury proceedings to a civil anti-trust case against

the identical defendant. Id. at 211. That case is distinguishable from

the case at bar. We noted that the district court order, which addressed

the secrecy of grand jury proceedings, was "effectively unreviewable on

appeal from a final judgment. Any harm to ADM's and Nabisco's interests

which are sought to be protected by keeping grand jury proceedings secret

cannot be undone by a later reversal of the district court order." Id. at

210. Lurie makes no such showing here. Accordingly, the collateral order

doctrine is inapplicable.

As a final thought, we observe that this court, apparently without

effect, frequently expresses its frustration with the numerous bankruptcy

appeals that neglect our jurisdictional limitations. See, e.g., Groves v.

LaBarge, 39 F.3d 212, 214 (8th Cir. 1994) ("Once again, as happens all too

often, bankruptcy practitioners have briefed and argued an appeal to this

court paying no attention to our controlling jurisdictional precedents.");

In re Woods Farmers Coop. Elevator Co., 983 F.2d at 126 ("This appeal

illustrates the jurisdictional mess that results when parties to a complex

bankruptcy proceeding ignore the final order requirement of 28 U.S.C.

§ 158(d)."); Broken Bow Ranch, Inc. v. Farmers Home Admin., 33 F.3d 1005,

1007 (8th Cir. 1994) ("As happens all too often in bankruptcy appeals,

neither party
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addressed [the jurisdiction] issue . . . ."). The lesson here for

litigants is to examine jurisdiction before, not after, appealing.

CONCLUSION

Accordingly, we dismiss the appeal for lack of appellate

jurisdiction. The dismissal is without prejudice. We express no opinion

as to the merits of the substantive issues presented.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.