Jacobs v. Brain Power America Inc. (In Re Jacobs)

*436 ORDER OVERRULING UNTIMELY ELECTION The Panel has received and considered the election filed by Brain Power America, Inc., and John W. Muije to have BAP appeal NV-15-1048 heard by the United States district court. Pursuant to Fed. R. Bankr.P. 8005, the Panel has examined the election for timeliness. The deadline for a party to an appeal to file an election to the U.S. district court is governed by 28 U.S.C. § 158(c). [E]ach appeal ... shall be heard by a 3-judge panel of the bankruptcy appellate panel service ... unless — (A) the appellant elects at the time of filing the appeal; or (B) any other party elects, not later than 30 days after service of notice of the appeal; to have such appeal heard by the district court. 28 U.S.C. § 158(c)(1). The debtor filed her notice of appeal on February 10, 2015, and the appeal was referred to the BAP (appeal no. NV-15-1048). On February 24, 2015, Brain Power America, Inc., and John W. Muije filed their “notice of cross-appeal,” which was referred to the BAP (appeal no. NV-15-1064). A cross-appeal briefing order was issued in both appeals on February 25, 2015, superseding the initial briefing order issued in NV-15-1048. On March 5, 2015, in appeal no. NV-15-1048, Brain Power America, Inc., and John W. Muije filed an election to have the appeal heard at the U.S. district court. The election identifies the electing parties as “Appellees/Cross-Appellants.” Appellants and cross-appellants must file their election to have an appeal heard at the U.S. district court at the time of filing the notice of appeal or cross-appeal. 28 U.S.C. § 158(c)(1)(a). Appellants and cross-appellants are not “other parties” to an appeal or cross-appeal. See In re Snell, 237 B.R. 636, 638 (6th Cir. BAP 1999) (a cross-appellant must file its election when filing its cross-appeal, it cannot wait until the appellee election period expires in the main appeal). We conclude appellees/cross-appellants’ election is untimely and therefore it is OVERRULED.