UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ELWOOD LESLIE NIELSEN and LYNN NIELSEN,

Plaintiffs - Appellants,

v.

DAVID L. MILLER, Trustee, U.S. TRUSTEE,

Defendants - Appellees.	No. 04-4195

(D.C. No. 2:03-CV-1093-PGC)

(Dist. Utah)

ORDER AND JUDGMENT*

Before EBEL, MURPHY and McCONNELL, Circuit Judges.

This appeal is taken from a district court order denying Elwood and Lynn Nielsen's pro se motion to withdraw the district court's earlier reference of their case to the bankruptcy court. The district court denied Appellants' motion for withdrawal on June 2, 2004, on the grounds that it was untimely. This appeal followed.1 We AFFIRM for the reasons stated by the district court.

Elwood and Lynn Nielsen ("Appellants" or "Debtors") are lifetime farmers who voluntarily filed for personal bankruptcy under Chapter 11 on February 19, 1986. Pursuant to 28 U.S.C. § 157(a), their case was referred to the bankruptcy court and designated as Case No. 86A-20700. On December 11, 2003, the Nielsens, proceeding pro se, moved for the withdrawal of the reference to the bankruptcy court. They asked the district court to either (1) dismiss the case in its entirety or (2) conduct a jury trial on twenty-seven causes of action, all apparently arising from alleged errors on the parts of their counsel, the trustee, and the bankruptcy court during the more than eighteen years of bankruptcy proceedings in this case.

A district court must "on timely motion of a party" withdraw a proceeding otherwise referred to the bankruptcy court if resolution of the case "requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce." 28 U.S.C. § 157(d). We do not need to reach the question of whether this case raises the kinds of issues that would otherwise require withdrawal to the district court, because we agree that a motion for withdrawal filed eighteen years after bankruptcy proceedings are instituted—especially when those bankruptcy proceedings are on the "brink of closure"—is not timely.

Here, Appellants' allegations arise from events going back as far as 1986. They assert, for example, that the bankruptcy case itself was "improperly filed" and that their Statement of Affairs and Schedules, prepared by counsel, was "replete with error, false hoods [sic] and mistakes, one after another." Even if these were issues properly before a district court, the Nielsens' claims were not brought to the district court's attention in a timely manner. Therefore, we AFFIRM the district court's denial of the motion for withdrawal.2

Finally, to the extent Appellants argue the merits of their underlying claims on this appeal, we note for clarity's sake that the only issue before us is whether the district court properly denied Appellants' motion to withdraw. Because we conclude that district court was correct in denying that motion, we do not reach the merits of any of Appellants' additional claims.3

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge