Perry v. Shavers, et al

United States Court of Appeals
Fifth Circuit
F I L E D
May 24, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60483
JOHN E. SHAVERS; ET AL
Plaintiffs,
JASON EDWARD CARR,
Plaintiff-Appellant,
versus
GEORGE DALE, ETC; ET AL,
Defendants,
GEORGE DALE, Insurance Commissioner, State of Mississippi;
WILLIAM H. ELLSWORTH; ALEXANDER J. ELLSWORTH; ELLSWORTH, LEBLANC
& ELLSWORTH INC.; UNITED STATES FIRE INSURANCE COMPANY, A
Delaware Corporation,
Defendants-Appellees.
No. 05-60143
In the Matter Of: JOHN E. SHAVERS, Debtor
--------------------
JOHN E. SHAVERS,
Appellant,
versus
UNITED STATES FIRE INSURANCE COMPANY; SHAVERS-WHITTLE
CONSTRUCTION INC.,
Appellees.

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* Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
No. 05-60574
In the Matter Of: JOHN E. SHAVERS, Debtor
--------------------
B.G. PERRY,
Appellant,
versus
DEWAYNE MURRAY, Trustee; UNITED STATES FIRE INSURANCE Co.,
Appellees.
--------------------
Appeals from the United States District Court
for the Southern District of Mississippi, Jackson Division
--------------------
Before GARWOOD, DAVIS and GARZA, Circuit Judges.
PER CURIAM:*
This appeal includes three consolidated cases related to the
bankruptcy of John E. Shavers. The Shavers involuntary
bankruptcy was originally filed in the Bankruptcy Court for the
Eastern District of Louisiana. After the Louisiana bankruptcy
court entered an order of relief under Chapter 11, it transferred
the case to the Bankruptcy Court for the Southern District of
Mississippi, because a related civil case had been removed to
that jurisdiction. When Shavers appealed the order of relief,
the Louisiana district court transferred the appeal to the
district court for the Southern District of Mississippi. The

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No. 04-60483, cons. w/ 05-60143 and 05-60574
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Mississippi district court affirmed the order of relief. Shavers
appeals from that order in Case No. 05-60143.
Based on our review of the record, the district court
properly affirmed the order of relief. Shavers’ argument that he
is not an eligible debtor under 11 U.S.C. § 109 is without merit.
Entry of the bankruptcy court’s order before Shaver filed an
answer to the involuntary petition did not violate Shavers’
rights as he had a full opportunity to present his case in the
trial of his motion to dismiss the involuntary bankruptcy
petition.
The district court also properly rejected Shavers’ argument
that the court was without jurisdiction over the appeal because
of the transfer of the case from Louisiana to Mississippi. The
Louisiana Bankruptcy Court issued the order to transfer the case
to the Mississippi Bankruptcy Court on November 4, 2003, on the
same day the order was entered granting Chapter 11 relief.
Shavers appealed the order granting Chapter 11 relief on November
10, 2003. Shavers’ notice of appeal immediately transferred
jurisdiction over the case from the bankruptcy court to the
Louisiana District Court. 10 Collier on Bankruptcy ¶8001.04.
The Louisiana District Court clearly was within its authority to
transfer the appeal to the Mississippi District Court where
related proceedings were ongoing. See 28 U.S.C. § 158(a) and 28
U.S.C. § 1412. Although there is some confusion in the
electronic records of the Louisiana District Court as to which

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No. 04-60483, cons. w/ 05-60143 and 05-60574
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1 The January 5, 2006 order of the Louisiana District Court
was entered after Shavers’ notice of appeal from the Chapter 11
Order was re-docketed in the Eastern District of Louisiana.
Judge Africk found that Shavers’ appeal had previously been
docketed, transferred to the Mississippi Court and decided. That
order is presently on appeal to this court before another panel
under docket no. 06-30106.
notice of appeal filed by Shavers was docketed and transferred to
the Mississippi District Court, the two district courts that have
examined the record have concluded that Shavers’ appeal of the
Chapter 11 order is the appeal that was docketed in the Louisiana
District Court, and transferred to the Mississippi District Court
where it was heard and decided and then appealed to this court.
See Memorandum and Order, entered by the Mississippi District
Court on February 1, 2003. See also Order and Reasons, entered
by the Louisiana District Court on January 5, 2006.1 We agree.
Accordingly, we affirm case No. 05-60143 on the basis of the
district court’s Memorandum Opinion and Order Affirming Order of
Bankruptcy Court entered on February 1, 2005.
Case no. 04-60483 is the appeal from the district court’s
denial of a motion to remand the civil case related to the
Shavers Bankruptcy that had originally been filed in Mississippi
state court. An order denying a motion to remand is not
reviewable by appeal or otherwise. 28 U.S.C. § 1334(d).
Accordingly, we dismiss case no. 04-60483.
Case No. 05-60574 is an appeal from an order of the
Mississippi bankruptcy court ordering B.G. Perry to appear for an
examination. The Mississippi district court properly held that

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No. 04-60483, cons. w/ 05-60143 and 05-60574
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it was not a final order and dismissed for lack of jurisdiction.
28 U.S.C. § 158(d)(2)(A). Accordingly, we affirm case No. 05-
60574.
Case No. 05-60143, AFFIRMED.
Case No. 04-60483, DISMISSED.
Case No. 05-60574, AFFIRMED.

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