                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           MAR 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


In re: TRUMAN W. THOMPSON,                       No. 14-55512

              Debtor,                            D.C. No. 3:13-cv-00994-BEN-
                                                 NLS

TRUMAN W. THOMPSON,
                                                 MEMORANDUM*
              Debtor - Appellant,

 v.

C&W DIVING SERVICES, INC.,

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                        Argued and Submitted March 9, 2016
                                Pasadena, California

Before: PREGERSON, PAEZ, and NGUYEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      C&W Diving Services, Inc. commenced an adversarial proceeding in the

chapter 7 bankruptcy of its former employee, Truman Thompson. On C&W’s

motion, the bankruptcy court issued sanctions against Thompson, striking his

answer and directing the clerk to enter default. Thompson appealed the bankruptcy

court’s sanctions order to the district court, which affirmed. He then appealed to

this court. “Although neither party raised the issue of whether we have jurisdiction

over this appeal, we must address the question sua sponte.” Hostler v. Groves, 912

F.2d 1158, 1160 (9th Cir. 1990). We dismiss Thompson’s appeal for lack of

appellate jurisdiction. See Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264

(1978).

      Because an order awarding sanctions and entering default is not final until

judgment is entered, an appeal generally must be dismissed as premature when it is

taken after an order awarding sanctions and entering default but before the

determination of damages and entry of judgment. Baker v. Limber, 647 F.2d 912,

915–16 (9th Cir. 1981). At oral argument, Thompson conceded that his appeal

from the district court was premature. Indeed, Thompson appealed from the

bankruptcy court order “granting Terminating Sanctions and an Entry of Default”

on Aril 24, 2013, one day after the bankruptcy court granted sanctions, but over 16

months before the bankruptcy court entered judgment on September 11, 2014.


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Similarly, he appealed the district court’s adverse decision to this court on March

28, 2014, still over five months before the bankruptcy court entered judgment.

      Nonetheless, at oral argument Thompson’s counsel asserted that we have

jurisdiction to review the sanctions order pursuant to Baker, Anderson v. Allstate

Ins. Co., 630 F.2d 677 (9th Cir. 1980), and United States v. Real Prop. Located at

475 Martin Lane, 545 F.3d 1134 (9th Cir. 2008). In Baker and 475 Martin Lane,

however, we had jurisdiction over the interlocutory orders in those cases because

they merged into final judgments from which the appellants timely appealed.

Baker, 647 F.2d at 916; 475 Martin Lane, 545 F.3d at 1140–41. In Anderson, we

held that “judgments whose finality normally would depend on a Rule 54(b)

certificate may be treated as final if remaining claims subsequently have been

finalized, even by developments occurring after appeal.” Baker, 647 F.2d at 916

(citing Anderson, 630 F.2d at 680–81). Thompson never appealed from the final

judgment, however, and the bankruptcy court’s sanctions order was not the type of

partial judgment “whose finality normally would depend on a Rule 54(b)

certificate.” Id. None of the three cases avails him.

      Thompson’s counsel also directed the court to Federal Rule of Appellate

Procedure 4(a)(2) (“A notice of appeal filed after the court announces a decision or

order—but before the entry of the judgment or order—is treated as filed on the date


                                         -3-
of and after the entry.”). But we have held that Rule 4(a)(2) allows us to treat a

premature appeal as timely filed only “when ‘[a]ll that remained was the clerk’s

ministerial task of entering a Rule 58 judgment.’” Kennedy v. Applause, Inc., 90

F.3d 1477, 1483 (9th Cir. 1996) (quoting In re Jack Raley Constr., Inc., 17 F.3d

291, 294 (9th Cir. 1994)). Here the bankruptcy court’s sanctions order expressly

called for C&W to “file and serve documents, including admissible evidence, in

support of its default prove-up,” thus reserving a determination of liability and

damages. The remaining tasks were unlike the “ministerial task” of entering

judgment, Kennedy, 90 F.3d at 1483, so Rule 4(a)(2) does not permit us to treat

Thompson’s appeal as timely.

      DISMISSED.




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