1

12

- 4254

- bk Sapere Wealth Mgmt. LLC e t al. v. MF Global Holdings Ltd.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (wi th the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United State s Courthouse, 40 Foley Square, in the City of New York, on the 6 th day of December , two thousand thirteen.

PRESENT:

J OHN M. W

ALKER

, J R
., J OSÉ A. C ABRANES

, R AYMOND J. L OHIER

, J R

. ,

Circuit Judges

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x S APERE W EALTH M

ANAGEMENT LLC

, G RANITE A SSET

M ANAGEMENT

, S APERE CTA F UND

, L.P.,

Appellant s,

- v.

- No. 12

- 4254

- bk

MF G LOBAL H OLDINGS L TD

., Plan Administrator

,

Appel l ee

.

J AMES W. G IDDENS

, Trustee for the SIPA Liquidation of MF

Global Inc.

,

Trustee

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x2

FOR APPELLANT S : J OHN J. W ITMEYER

, III , ( Jon R. Grabo wski

, on the brief ) Ford Marrin Esposito Witmeyer &

Gleser

, LLP

, New York, NY.

FOR DEFENDANT

- APPELLEE : M ARC A. H EARRON ( Brett H. Miller, Craig A. Damast, William M. Hildbold, New York, NY,

on the brief ) Morrison & Foerster LLP, Washington, DC.

Appeal f rom the October 9 , 2012 judgment of the United States District Court for the

Southern District of New York ( Jesse M. Furman

, Judge

).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the October 9 , 2012 judgment of the District Court is AFFIRMED

.

Appellants Sapere Wealth Management LLC, Granite Asset Management, and Sapere CTA
Fund, L.P. ( together, “Sapere”) 1 appeal from the judgment of the District Court dismissing for lack
of jurisdiction an appeal from the February 1, 2012 opinion and order of the Bankruptcy Court
(Martin Glenn, Judge

) ( the “ Bankruptcy Order ”) on the basis that the Bankruptcy Order was interlocutory rather than final. The only issue on appeal is whether the District Court correctly

determined that the Bankruptcy O rder was not final for the purposes of an appeal as of right under
28 U.S.C. § 158(a) (1)

. 2 Familiarity with the factual and procedural back ground of this case is
presumed

.

The Bankruptcy Order denied Sapere’s December 5, 2011 motion

― part of a Chapter 11

b ankruptcy action instituted by MF Global Holdings, Ltd. (“MFGH”)

― to direct that the estates of
MFGH and its affiliates (together, “ Chapter 11 Debtors”) be administered pursuant to subchapter
IV of chapter 7 of the Bankruptcy Code (11 U.S.C. §§ 761

- 767), an d Part 190 of the U.S.
Commodity Futures Trading Commission (“CFTC”) regulations (17 C.F.R. § 190). In denying the
motion, the Bankruptcy Court “e mphasize [d] that the denial of Sapere’ s Motion

. . . does not
determine the rules that apply to distributi ons from the Chapter 11 Debtors’ estates to MFGI

customers.” In re MF Global Holdings Ltd., 465 B.R. 736, 744 (Bankr. S.D.N.Y. 2012). We agree with

the District Court that

, b ecause the Bankruptcy Order did not foreclose Sapere’s ability to continue

to asser t a priority right to distributions from the Chapter 11 Debtors’ estate s, the Bankruptcy Order

1 Sapere is a commodities customer of MF Global Inc. (“MFGI”), the subsidiary, registered broker

- dealer, and futures

commission merchant of MFGH. SPA12.

2 We have explained that “[f] or appeals ‘of right’ a distr ict court only has jur isdiction to hear appeals from ‘ final judgments, orders, and decrees. ’ ” In re The Bennett Funding Grp., Inc. , 439 F.3d 155, 159

- 60 (2d Cir. 2006) (quoting 28 U.S.C. § 158(a)(1) )

.3

is not a final order.

. 3 Cf. In re Chateaugay Corp. , 838 F.2d 59, 62 (2d Cir. 1988) (holding that a district
court’s order remanding to bankruptcy court was inte rlocutory where “the district court’ s opinion is
replete wi th expressions of non

- finality [and] contemplates significant further proceedings in the
bankruptcy court [to determine the rights of the parties]”). Accordingly, we affirm the judgment of

the Dis trict Court dismissing the appeal for lack of subject matter jurisdiction

.

CONCLUSION

We have considered the parties’ arguments on appeal and AFFIRM the October 9 , 2012
judgment of the District Court

.

FOR THE COURT,

Catherine O’Hagan Wolfe, Clerk of Cour t

3 Indeed, Sapere continued to pursue its priority righ ts in the District Court and the Bankruptcy Court. See Notice of Appeal, In re MF Global Holdings Ltd.

, No. 13

- 3532 (S.D. N.Y. May 24, 2013), ECF No. 1; Objection to Proof of Claim No. 1481, In re MF Global Holdings Ltd.

, No. 11

- 15059

- mg (Bankr. S.D.N.Y. Feb. 13, 2013), ECF No. 1081.