In Re Tom Rubin, D/b/a Tom Rubin & Associates, Movant-appellant, 679 F.2d 29 (5th Cir. 1982)

Tom Rubin, doing business as Tom Rubin and Associates, is the subject of a bankruptcy proceeding now pending in the United States Bankruptcy Court, Central District of California.

On January 22, 1982, Rubin initiated discovery proceedings involving KHTV-TV, Houston, Texas, in the United States District Court for the Southern District of Texas. KHTV is not a petitioning creditor in the proceedings.

The district judge denied the discovery motion on February 2, 1982. On March 4, 1982, Rubin filed notice of appeal. KHTV moves to dismiss the appeal on the grounds that (1) the district court order denying discovery is an interlocutory order and is non-appealable, and (2) the appeal is moot. We deny the motion to dismiss the appeal.

(1) It is true that normally the action by the district court on a discovery motion is interlocutory and not appealable. Honig v. E. I. duPont deNemours & Co., Inc., 404 F.2d 410 (5th Cir. 1968). But of importance in the circumstances of this case is the requirement under Rule 37(a) (1), Fed. R. Civ. P., that the motion for discovery was required to be filed in the Southern District of Texas. Since KHTV is not a party to the bankruptcy in California, the only way in which the order of the district court denying discovery can be appealed is to this Court. If this appeal is dismissed there is no review of the district court order. Under these circumstances, appeal from such an order should lie. See Marine Petroleum Co. v. Champlin Petroleum Co., 641 F.2d 984, 987 n.3 (D.C. Cir. 1979); National Life Ins. Co. v. Hartford Accident & Indemnity Co., 615 F.2d 595, 597 (3rd Cir. 1980).

We find that the denial of the discovery motion in this case is appealable.

(2) The claim of mootness is based upon a March 10, 1982, final cut off date for discovery established by the bankruptcy court. The district court entered its order on February 2, 1982. The notice of appeal was timely filed on March 4, 1982. The order of the bankruptcy court cannot cut off a timely right to appeal. Similar appeals and proceedings are pending in other circuits. The appeal is not moot.

IT IS ORDERED that the motion of appellee KHTV-TV to dismiss the appeal is DENIED.