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

### for the Eastern District of Missouri.

-1- ___________ 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 he r 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. -2- order is not a final judgment, we dismiss Lurie's appeal for lack o f jurisdiction.

BACKGROUND
This c ase 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. Th e dis trict court granted Lurie leave to appeal the bankruptcy court orde r pursuant to 28 U.S.C. § 158(a)(3). The district court eventuall y 2 dismissed Lurie's appeal with prejudice for failure to prosecute within th e 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 amen d judgment.
Lurie raises two issues in her appeal to this court. First, sh e assert s that the district court erred in dismissing her interlocutor y appeal. Second, Lurie argues that the district court erred in denying her motion to alter or amend judgment under Rule 59(e).

Lur ie originally asserted jurisdiction for this appeal under 2 8 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.

-3- U.S.C . § 1291 and the collateral order doctrine. Appellee contest s 3 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 h ave jurisdiction under 28 U.S.C. § 158(d) is incorrect. Section 158 addresses the procedure for appeal s from bankruptcy courts and states in relevant part:

(a) The dis trict courts of the United States shall have jurisdiction to hear appeals (1) from final judgments, orders, and decrees; * * * * (3) w ith leave of the court, from other interlocutor y orders and decrees; . . . * * * * (d) T he courts of appeals shall have jurisdiction o f appea ls from all final decisions, judgments, orders, an d decrees entered under subsection (a) . . . of this section.

28 U. S.C. § 158. Accordingly, "[u]nlike the district court, which ha s disc retionto 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

### -4-

court." Drewes v. St. Paul Bank for Cooperatives (In re Woods Farmer s Coop. Elevator Co.), 983 F.2d 125, 127 (8th Cir. 1993) (quoting 28 U.S.C. § 158(d)). Neither party disputes that the app eal at issue is an interlocutory one. "For purposes o f § 158(d), a determination of the district court is not `final' unless the underlying order of the b ankruptcy 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 unde r § 158(d ) because neither § 158(d) "nor any other part of § 158 mention s inter locutoryorders entered by the district courts in bankruptcy. " Connecticut Nat. Bank v. Germain , 503 U.S. 250, 252 (1992). The bankruptc y court order denying L urie's demand for a jury trial is not a final order. Accordingly, we lack jurisdiction under § 158(d).
Lurie rai sed a new basis for jurisdiction, 28 U.S.C. § 1291 and the collateral order doctrine, during oral argument. According to § 1291, "Th e courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United S tates . . . ." The appeal at issue here is interlocutory which, as a general rule, renders § 129 1 inapplicable because that provision only applies to final orders. Lurie asserts, however, tha t 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, 37 4 (1981), applies. We disagree.
The collateral order doctrine is onl y utilized when a district court order, a t a minimum, meets three criteria: "It must `conclusivel y determine the disputed question,' `resolve an important issue completely separate from the mer its of the action,' and `be effectively unreviewable on appeal from a final judgment.'"

### -5-

Richar dson-Merrell, Inc. v. Koller , 472 U.S. 424, 431 (1985) (quotin g Coopers & Lybrand v. Livesay , 437 U.S. 463, 468 (1978)). Lurie, however, does not demonstrate she is precluded from havin g 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. , 78 5 F.2d 206 ( 8th Cir. 1986), where we held jurisdiction existed under th e collateral order doctrine to hear an appeal of a district court orde r uphold ing the government's assignment of the same attorneys who ha d participated in grandjury 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 se crecy of grand jury proceedings, was "effectively unreviewable o n appeal from a final judgment. Any harm to ADM's and Nabisco's interests which are sought to b e protected by keeping grand jury proceedings secret cannot be undone by a later reversal of the dist rict court order." Id. at 210. Lurie makes no such showing here. Accordi ngly, the collateral order doctrine is inapplicable.

As a fin al thought, we observe that this court, apparently withou t effect, frequently expresses its frustration with the numerous bankruptcy appeals that neglect our jurisdictional limitati ons. See, e.g. , Groves v. LaBarge , 39 F.3d 212, 214 (8th Cir. 1994) ("Once again, as happens all too often, bankruptcy pra ctitioners have briefed and argued an appeal to this court paying no attention to our controlling jur isdictional precedents."); In re Woods Farmers Coop. Elevator Co. , 983 F.2d at 126 ("This appea l illustrates the jurisdictional mess that results when parties to a complex bankru ptcyproceeding ignore the final order requirement of 28 U.S.C
. § 158(d)."); Broken B ow Ranch, Inc. v. Farmers Home Admin. , 33 F.3d 1005, 1007 (8th Cir. 1994) ("As happens all too often in bankruptcy appeals , neither party

### -6-

addressed [the jurisdiction] issue . . . ."). The lesson here fo r litigants is to examine jurisdiction before, not after, appealing.

CONCLUSION
Accordingly, we dismiss the appeal for lack of appellat e jurisdiction. The di smissal 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.