McCallan v. Wilkins (Joint Assign)

Filing 19

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Appellant Timothy McCallan's 1 -1 amended motion for leave to file an interlocutory appeal is DENIED; 2) McCallan's 2 Emergency Motion to expedite the appeal pursuant to Rule 8003(a)(2)(B) FRBP is DENIED as moot; 3) Appellee Carly B. Wilkins's 3 motion to dismiss for lack of jurisdiction is GRANTED; 4) Appellee's 5 motion to strike the motion for leave to expedite the appeal is DENIED as moot; 5) Appellee� 39;s 14 motion to strike McCallan's brief in support of the appeal is DENIED as moot; 6) The appeal is DISMISSED; Final judgment will be entered separately. Signed by Chief Judge William Keith Watkins on 3/19/2018. (Furnished: Bankruptcy Clerk) (alm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TIMOTHY MCCALLAN,
Appellant,
v.
CARLY B. WILKINS,
as Trustee for Debtors Allegro Law,
LLC and Allegro Financial Services,
LLC,
Appellee.

)
)
)
)
) CASE NO. 2:18-CV-117-WKW
) (WO)
)
)
)
)
)
)

MEMORANDUM OPINION AND ORDER
Before the court are the following motions: (1) Defendant/Appellant Timothy
McCallan’s amended motion (Doc. # 1-1) for leave to file an interlocutory appeal;
(2) McCallan’s Emergency1 Motion (Doc. # 2) to expedite the appeal pursuant to
Rule 8003(a)(2)(B) of the Federal Rules of Bankruptcy Procedure; (3) Appellee
Carly B. Wilkins’s motion (Doc. # 3) to dismiss for lack of jurisdiction; (4)
Appellee’s motion (Doc. # 5) to strike the motion for leave to expedite the appeal;

1

Although designated an “emergency” motion, the motion does not comply with Rule
8013(d)(2) of the Federal Rules of Bankruptcy Procedure. See Fed. R. Bankr. P. Rule
8013(a)(2)(B) (“A motion to expedite an appeal may be filed as an emergency motion under
subdivision (d).”); Fed. R. Bankr. P. R. 8013(d)(2) (requiring that an emergency motion “be
accompanied by an affidavit setting out the nature of the emergency” and “state whether all
grounds for it were submitted to the bankruptcy court and, if not, why the motion should not be
remanded for the bankruptcy court to consider”). Among other deficiencies, the motion lacks an
affidavit.

and (5) Appellee’s motion to strike McCallan’s brief in support of the appeal (Doc.
# 14). The court concludes that the motion to dismiss for lack of jurisdiction is due
to be granted, the motion for leave to file an interlocutory appeal is due to be denied
on the merits, and the remaining motions are due to be denied as moot.
I.

PROCEDURAL HISTORY

On October 6, 2016, the bankruptcy court held McCallan in civil contempt of
court for willful failure to comply with a previous order to compel postjudgment
discovery by, among other things, submitting discovery responses that he knew were
incomplete and offering meritless excuses for his failure to fully and accurately
respond to discovery. (Doc. # 7-7.) The October 6, 2016 Order did not impose
sanctions on McCallan (despite a motion for sanctions from the opposing party), but
did require McCallan to purge himself of contempt “not later than October 18, 2016”
by supplying truthful and accurate answers to certain interrogatories and complying
with a request for production of documents. (Doc. # 7-7.)
At no time since October 6, 2016, did the bankruptcy court find that McCallan
had purged himself of contempt. Since then, however, the bankruptcy court’s efforts
to prod McCallan into compliance have been ongoing. By Order entered October
21, 2016, the bankruptcy court found that McCallan had “perpetrated a fraud upon
the Court by misrepresenting the reasons [a Florida2 hurricane and the death of a

[2 McCallan lives in Melbourne, Florida.
2

nephew] that he failed to purge himself of contempt and instead seeking additional
time . . . for the purpose of moving, hiding, or otherwise disposing of assets that
could otherwise be used to satisfy the judgment against him in this matter.” (Doc. #
7-8 at ¶¶ 2-3.) Accordingly, the bankruptcy court held that McCallan “remains in
contempt, has failed to purge himself of contempt, and has committed additional acts
of contempt since the October 6, 2016 hearing.” (Doc. # 7-8 at ¶ 4.) The bankruptcy
court directed McCallan to comply with additional discovery requests, provide an
accounting of $498,000.00 in a certain Wells Fargo bank account, and refrain from
making any additional transfers of the $498,000.00 “that he swore under penalty of
perjury was in” the Wells Fargo account. (Doc. # 7-8 at ¶¶ 8-10.) The bankruptcy
court warned that, if McCallan did not comply with all discovery obligations within
the next seven days, the bankruptcy court would order him arrested and brought
before it. (Doc. # 7-8 at ¶ 11.)
McCallan did not comply with the requirements of the October 21, 2016
Order. For reasons not immediately apparent from the relatively limited selection
of documents included in the designated record on appeal, the Bankruptcy Court did
not order McCallan arrested until approximately one year later. On the Certified
Docket sheet (Doc. # 1-3), one-hundred and twenty-three entries are recorded
between October 21, 2016 and August 22, 2017. Those entries demonstrate that,
during that time, the bankruptcy court continued to manage ongoing discovery
3

disputes and engage in attempts to prompt McCallan to comply with his discovery
obligations. By Order entered August 22, 2017, following an evidentiary hearing on
pending motions for sanctions, the bankruptcy court held that McCallan was “in
default on numerous obligations to provide discovery,” had not provided an
accounting of the money in the Wells Fargo account, and “ha[d] been in contempt
of court at all times since this Court entered its order of October 6, 2016.” (Doc. #
7-12 at 1-2.) The bankruptcy court ordered McCallan to comply with all outstanding
discovery requests, supplement all postjudgment discovery, and provide a complete
accounting (through September 15, 2017) of the Wells Fargo bank account. (Doc.
# 7-12 at 2.)

The bankruptcy court set September 15, 2017, as the deadline for

compliance and set another hearing for October 23, 2017, to review whether
McCallan had purged himself of contempt. (Doc. # 7-12 at 2.)
In an order entered September 13, 2017, the bankruptcy court considered
McCallan’s motion for extension of time to produce the outstanding discovery
because of another Florida hurricane. The bankruptcy court noted McCallan’s
“history of misrepresenting the effects of natural disasters on his ability to prepare,”
the absence of an affidavit or any specifics as to the difficulties caused by the
hurricane, the fact that McCallan’s compliance efforts should have been mostly
completed before the hurricane arrived if other allegations in the motion truthfully
represented the diligence of his efforts to comply, and the fact that the hurricane
4

tracked further west than originally forecast, further minimizing any potential effect
on McCallan. (Doc. # 7-13 at 1.) Nevertheless, the bankruptcy court granted
McCallan one additional week, until September 22, 2017, to comply. (Doc. # 17-13
at 2.)
On October 23, 2017, the bankruptcy court held a hearing to determine
whether McCallan had purged himself of contempt. (Doc. # 7-14.) At the hearing,
the bankruptcy court ordered McCallan jailed for contempt after finding that
McCallan’s claims that he had complied with the court’s orders were false. (Doc. #
7-14.) By written order dated October 23, 2017, the bankruptcy court explained:
McCallan is in direct civil contempt for his failure to produce post
judgment discovery as required by the Court’s Order of August 22,
2017.[3] McCallan’s incarceration is civil in nature and therefore
coercive and not punitive. McCallan holds the keys to his jail cell in
his pocket. He need only produce the required discovery, or prove that
he cannot, to secure his release. The Court notes that McCallan filed a
Response on October 16, 2017, contending that he was in compliance
with the August 22, 2017 order. . . . Indeed, at the opening of [the]
October 23, 2017 hearing, McCallan argued through counsel that he
was in full compliance with all obligations. At the end of the day, on
October 23, 2017, it was clear that McCallan’s claims of compliance
were false. McCallan appeared to be changing his position, arguing
alternatively, that either he had fully complied, or that he could not
comply because he did not have the means. These claims are mutually
exclusive.
(Doc. # 7-14 at 1-2.)

[3 The August 22, 2017 Order required compliance with unfulfilled responsibilities
imposed by the October 6, 2016 Order.]
5

The bankruptcy court “cautioned [McCallan] that, to purge himself of
contempt[,] he must demonstrate that he has fully disclosed all of the matters
requested to the best of his ability” and that, “given McCallan’s long history of lying
to the Court and flouting its orders, he is cautioned that he must be candid with
[Appellee] and with the Court.” (Doc. # 7-14.) The bankruptcy court set another
hearing, this time for November 6, 2017, to “review McCallan’s efforts to come into
compliance” with the court’s orders. (Doc. # 7-14 at 2-3.)
McCallan “did not produce any further documents or materials at the time of
the November 6, 2017 hearing, but promised that discovery would be forthcoming.”
(Doc. # 7-16 at 1.) McCallan did represent that he had downloaded his responses
to “Dropbox” folders (a cloud-based electronic method of document storage), which
he would make available to Appellee. The bankruptcy court noted that “this is
precisely the same representation made in advance of the October 23, 2017, hearing,
which was shown to be incorrect.” (Doc. # 7-15.) The bankruptcy court further
noted that, had McCallan provided access to the Dropbox files on a more timely
basis, Appellee and the court would have been able to review the files before the
hearing.

The bankruptcy court characterized the Dropbox maneuver as a

“‘document dump’ . . . in an effort to prevent [Appellee] from examining the
production” and noted that it was the second time McCallan had used the maneuver
immediately prior to a hearing to determine whether he had purged himself of
6

contempt, despite orders designed to require him to submit his compliant materials
sufficiently in advance of the hearing. (Doc. # 7-15 at 2; Doc. # 7-16.) The court
cautioned that “another document dump in advance of the next hearing will not be
well received.” (Doc. # 7-15 at 2-3.) The court set another hearing for November
16, 2017, to review whether McCallan had purged himself of contempt. (Doc. # 715 at 3.)
Despite the warnings of the November 7, 2017 Order against a last-minute
“document dump” before the next scheduled evidentiary hearing, McCallan again
performed another “document dump” of “a large number of documents” two days
before the November 16, 2017 hearing. At a November 15, 2017 status conference
to discuss that “document dump,” McCallan’s lawyer admitted that McCallan’s
submissions still were not complete. (Doc. # 7-16.) Due to the “last minute
document dump,” the November 16, 2017 hearing was postponed and a status
conference was set for January 9, 2018, at which the bankruptcy court would
consider “whether yet another evidentiary hearing is appropriate.” (Doc. # 7-16.)
The bankruptcy court set a December 15, 2017 deadline for production of
outstanding discovery and other materials. (Doc. # 7-16.)
On December 23, 2017, McCallan filed a motion to quash the contempt
finding and for release from custody (Doc. # 12-7), in which he argued that he had

7

already purged himself of contempt and that his continued incarceration was
punitive.
Following the January 9, 2018 status conference, the bankruptcy court entered
a written order on January 16, 2018. (Doc. # 7-17.) It briefly described the history
of the case and noted that McCallan’s lawyer at the time of trial and in the early
phases of postjudgment discovery had been disbarred by the Alabama State Bar in
conjunction with his conduct in the case, including efforts to thwart discovery. (Doc.
# 7-17.)

The bankruptcy court noted McCallan’s motion to quash the contempt

finding and for release from custody and expressly rejected the contention in that
motion that McCallan’s continued incarceration was punitive because he had already
produced all responsive documents. (Doc. # 7-17.) The bankruptcy court set another
hearing, this time for January 30, 2018, to resolve the dispute over whether McCallan
had purged himself of contempt. (Doc. # 7-17.)
On January 30 and 31, 2018, the bankruptcy court held a hearing to determine
whether McCallan had purged himself of contempt. Following that hearing, the
bankruptcy court entered a written order on February 6, 2018. (Doc. # 1-1 at 8.) In
the February 6, 2018 Order, the bankruptcy court noted its finding, previously
announced from the bench at the hearing, that McCallan had failed to purge himself
of contempt. However, in the February 6, 2018 Order, the bankruptcy court did not
expressly rule on McCallan’s motion to quash the contempt finding or for release
8

from incarceration. Instead, the bankruptcy court announced its intent to enter
written findings of fact and conclusions of law following briefing by both parties,
for which the court set deadlines. (Doc. # 1-1 at 9.)
The bankruptcy court further found that the record, the voluminous
documentary evidence presented, and the nature of the production to date made a
“daunting task” of determining the precise contours of the remaining contempt
dispute. (Doc. # 1-1 at 9.) The bankruptcy court then ordered that, before it held
any additional evidentiary hearings to review whether contempt had been purged,
McCallan would be required to demonstrate that he had purged himself of contempt
by complying with the following conditions: (1) he must provide updated responses
to specifically enumerated discovery requests; (2) he must file an updated
accounting for the $498,000 that was in the Wells Fargo account; (3) he must amend
his bankruptcy schedules and statement of financial affairs in bankruptcy Case No.
17-30961; and (4) he must file a certification that he has complied with the February
6, 2018 Order. (Doc. # 1-1 at 10.) The bankruptcy court further ordered that, within
thirty days of the filing of the certification, Appellee must file a response stating
whether she agreed that McCallan’s responses were complete. (Doc. # 1-1 at 10.)
If no further controversy remained, the bankruptcy court would immediately release
McCallan from jail. If further controversy remained, the court would hold more

9

hearings to determine whether McCallan had purged himself of contempt. (Doc. #
1-1 at 10.)
On February 15, 2018, McCallan filed a notice of appeal from the February
6, 2018 Order or, in the alternative, a motion for leave to file an interlocutory appeal
from the February 6, 2018 Order pursuant to 28 U.S.C. §158(a)(3) and Rule 8004 of
the Federal Rules of Bankruptcy Procedure. (Doc. # 1.) On February 22, 2018, this
court entered an Order (Doc. # 8) requiring the parties to submit briefing on the
question of this court’s subject-matter jurisdiction. The parties have submitted briefs
in compliance with the February 22 Order. (Doc. # 9; Doc. # 13.)
II.
A.

ANALYSIS

Appeal as of Right from a Final Order
Pursuant to 28 U.S.C. § 158(a)(1) and Rule 8003 of the Federal Rules of

Bankruptcy Procedure, an appeal as of right may be taken to the district court from
a final order of the bankruptcy court.4 Appellee argues that the February 6, 2018
Order is not a final order of the bankruptcy court because it does not end the litigation
on the merits, leaving nothing for the trial court to do but execute on the decision.
In determining the finality of an order “[i]n bankruptcy proceedings, it is generally
the particular adversary proceeding or controversy that must have been finally

4

Pursuant to 28 U.S.C. § 158(a)(2) and Rule 8003 of the Federal Rules of Bankruptcy
Procedure, an appeal as of right may be taken from certain other orders of the bankruptcy court.
McCallan does not argue that he has a right to appeal under § 158(a)(2).
10

resolved, rather than the entire bankruptcy litigation.” In re Charter Co., 778 F.2d
617, 621 (11th Cir. 1985).
The February 6, 2018 Order represents the outcome of a hearing held on
January 30-31, 2018, to review whether Appellant, who had already been in jail for
civil contempt since October 23, 2017, had purged himself of contempt. The
bankruptcy court stated in its February 6, 2018 Order that it intends to receive briefs
from the parties (the second of which is not due until today, March 19, 2018) and
enter written findings of fact and conclusions of law regarding its determination that
McCallan has not yet purged himself of contempt.5 (Doc. # 1-1 at 9.) The
bankruptcy court intends to further consider whether McCallan purged himself of
contempt after McCallan complies with the directives in the February 6, 2018 Order.
In short, the February 6, 2018 Order does not resolve the contempt controversy.
Accordingly, the February 6, 2018 Order is not a final order from which an
appeal may be taken as of right pursuant to 28 U.S.C. § 158(a)(1). See Catlin v.
United States, 324 U.S. 229, 233 (1945) (defining a “final decision”); In re Charter

5

The lack of written findings of fact and conclusions of law does not, in and of itself,
prevent a finding of finality. See Fed. R. Bankr. P. 8002(a)(2) (“A notice of appeal filed after the
bankruptcy court announces a decision or order—but before entry of the judgment, order, or
decree—is treated as filed on the date of and after the entry.”). However, as part of the briefing
requested in the February 6, 2018 Order, the bankruptcy court invited McCallan to submit a brief
in which McCallan would be permitted to argue that the bankruptcy court should make additional
findings or that the bankruptcy court “missed something, or misinterpreted the evidence.” (Doc.
# 1-1 at 19.) Thus, the briefing schedule offers McCallan a further opportunity to contest the
bankruptcy court’s findings prior to entry of written findings of fact and conclusions of law.
11

Co., 778 F.2d at 621 (“Although courts ‘take a more liberal view of what constitutes
a separate dispute for purposes of appeal’ in bankruptcy cases, In re Leimer, 724
F.2d 744, 745 (8th Cir. 1984), the separate dispute being assessed must have been
finally resolved and leave nothing more for the bankruptcy court to do.”); see also
United States v. Hallahan, 768 F.2d 754, 754 (6th Cir. 1985) (finding lack of
appellate jurisdiction where the contemnor did not timely appeal the original
contempt order, which was final and appealable, but instead appealed a subsequent
interlocutory order that “set[ ] forth the conditions [the contemnor] must meet to
purge himself of the [earlier] contempt order”). Cf. Powers v. Chi. Transit Auth., 846
F.2d 1139, 1141 (7th Cir. 1988) (citing “a line of cases dating to 1880” holding that
a civil contempt order, “including an order committing a party to jail pending
compliance, “is not a ‘final decision’ under [28 U.S.C.] § 1291”).
The court has, on its own, located opinions by courts in other circuits holding
that, in limited circumstances, an order denying a motion to purge contempt or to lift
continuing contempt sanctions is a final, appealable order, at least where the motion
itself raises new issues that were not available at the time of the original contempt
finding or the original imposition of sanctions.6 However, that line of cases (which

6

See, e.g., United States v. Brumfield, 188 F.3d 303, 306-07 (5th Cir. 1999) (holding that
an order was “final” and “a new right to appeal [was] triggered” where the challenged order denied
a motion in which the contemnor argued that he had purged himself of contempt by submitting
additional material after the original contempt finding); Consol. Rail Corp. v. Yashinsky, 170 F.3d
591, 594 (6th Cir. 1999) (reviewing an appeal from a “motion to purge . . . on a ground [that was]
not previously available and [was] not argued in [contemnor’s] initial motion to purge, i.e., that
12

represents merely persuasive authority) does not support a finding that the February
6, 2018 Order is a final judgment because McCallan, who bears the burden of
demonstrating the existence of subject matter jurisdiction on appeal,7 did not cite or
rely on the rationale of those cases.
Further, McCallan does not contend that, after the entry of the October 23 and
24, 2017 Orders, he took additional, adequate steps8 to purge himself of contempt,
or that new circumstances have arisen since that time that render him unable to
comply. Cf. United States v. Brumfield, 188 F.3d 303, 306-07 (5th Cir. 1999)
(holding that an order was “final” and “a new right to appeal [was] triggered” by
denial of a motion in which the contemnor argued that material submitted after the
original contempt finding had purged the contempt).

the contempt order . . . was now moot”); Nat. Gas Pipeline Co. of Am. v. Energy Gathering, Inc.,
99 F.3d 1134 (5th Cir. 1996) (noting that the contemnor’s third motion for release from
confinement and motion to vacate the original order of contempt “contain[ed] several grounds
which did not exist at the time the contempt order was entered, and it is these issues that [the court
would] consider on appeal”); United States v. Wheeler, 952 F.2d 326, 327 (9th Cir. 1991) (“We
hold that a[n] order refusing to vacate an underlying contempt order is nonappealable when the
ground on which vacatur is sought existed at the time the contempt order was entered and the
contemnor failed to appeal timely from that order.”).
7

The appellant bears the burden of demonstrating finality and the existence of appellate
jurisdiction. Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1423 (11th Cir.), opinion modified
on reh’g, 30 F.3d 1347 (11th Cir. 1994).
8

McCallan did subject the court and Appellee to additional “document dumps” in
November 2017 in violation of the bankruptcy court’s orders, but he also conceded that those
“document dumps” did not complete his outstanding production obligations. (Doc. # 7-16 at 2.)
13

In McCallan’s December 23, 2017 motion to quash the contempt finding and
for release from custody (Doc. # 12-7), he stated that he had already produced all
documents within his custody and control. McCallan presented a chart of “the items
required by the Show Cause Order and when those were provided.” (Doc. # 12-7 at
3 ¶ 7.) The chart indicated disclosure dates no later than October 16, 2017. Thus,
the argument that those disclosures purged McCallan of contempt was available at
the time of the October 23, 2017 hearing. In fact, at the October 23, 2017 hearing
(at which McCallan was jailed for contempt) and in the October 24, 2017 Order, the
bankruptcy court expressly considered and rejected McCallan’s argument that
disclosures made through October 16, 2017, were sufficient to purge the contempt,
or, alternatively, that McCallan was unable to engage in further acts of compliance.
(Doc. # 7-14 at 1-2.)9 The other arguments McCallan raised in his December 23,
2017 motion to quash were also available to him at the October 23, 2017 hearing:
specifically, that the bankruptcy court did not afford him the constitutionally

9

Specifically, the bankruptcy court stated:

McCallan filed a Response on October 16, 2017, contending that he was in
compliance with the August 22, 2017 order. . . . Indeed, at the opening of October
23, 2017 hearing, McCallan argued through counsel that he was in full compliance
with all obligations. At the end of the day, on October 23, 2017, it was clear that
McCallan’s claims of compliance were false. McCallan appeared to be changing
his position, arguing alternatively, that either he had fully complied, or that he could
not comply because he did not have the means. These claims are mutually
exclusive.
(Doc. # 7-14 at 1-2.)
14

required procedural protections for imposition of criminal contempt sanctions, and
that his incarceration exceeded the bankruptcy court’s statutory and constitutional
authority to impose significant punitive sanctions. (Doc. # 12-7.) The bankruptcy
court rejected those arguments in its October 24, 2017 Order (Doc. # 7-14 at 1-2)
and again in its January 16, 2018 Order. (Doc. # 7-17.)
Moreover, McCallan has not stated what new (post-October 2017) evidence
of compliance or change in circumstances, if any, he presented to the bankruptcy
court for consideration at the January 30-31, 2018 hearing. In fact, as Appellee
points out in her motion to dismiss,
[i]t is undisputed that McCallan offered no evidence at the January 30,
2018 evidentiary hearing. Despite having the burden of proof,
McCallan’s counsel stated at the outset of the hearing that “we have no
presentation, we just have rebuttal . . . we have nothing to present at this
time.”
(Doc. # 3 at 16 (quoting Doc. # 11-17 at 6).)
Accordingly, McCallan has not demonstrated that, in seeking to purge himself
of contempt, he presented argument or evidence that was unavailable to him at the
time of the bankruptcy court’s October 23 and 24, 2017 Orders finding him in
contempt and imposing a sanction of incarceration—orders that McCallan could
have—but did not—timely attempt to appeal. Therefore, unlike other cases where
changed circumstances or additional attempts to comply formed the basis of a
rejected motion to purge or for release from sanctions, this case does not implicate
15

the concern that “one who, subsequent to being jailed for contempt, has taken steps
which he contends should purge himself of contempt should be afforded an effective
avenue of review” of the denial of his motion for relief. Brumfield, 188 F.3d at 307.
Instead, a finding that the February 6, 2018 Order is “final” would undermine the
very concept and purpose of the finality requirement and ignore the practicalities of
the situation10 by allowing McCallan to challenge the October 2017 contempt
finding and incarceration sanction long after the time to appeal has run and without
either (1) taking further meaningful steps to purge contempt or (2) presenting
evidence of changed circumstances that render compliance newly impossible.
McCallan could simply (and potentially repetitively) tie up the bankruptcy court
proceedings and prosecute multiple appeals merely by repeatedly filing motions to
purge contempt or motions for release regardless of any change in circumstances.
Therefore, the court finds inapposite out-of-circuit authority holding that an order
denying a motion to purge contempt or to lift continuing contempt sanctions is a

10

See In re Martin Bros. Toolmakers, Inc., 796 F.2d 1435, 1437 (11th Cir. 1986) (noting
that “[t]he traditional rule narrows the concept of finality to avoid waste of judicial resources and
the delay inherent in piecemeal litigation” and that the collateral order doctrine so frequently
applied in bankruptcy cases “provides that an order resolving issues independent and easily
separable from the other claims in the action may be reviewed if delay would prejudice important
interests of the parties and if practical rather than technical factors also favor immediate review”);
Jove Eng’g, Inc. v. I.R.S., 92 F.3d 1539, 1548 (11th Cir. 1996) (holding that, in bankruptcy cases,
the determination of finality must be “grounded in the practicalities of the situation” (quoting
Martin Bros. Toolmakers, 796 F.2d at 1437).

16

final, appealable order if the motion asserts new grounds for relief that were not
previously available.
Further, for two independent reasons, the court is not inclined to construe the
February 6, 2018 Order as a denial of a motion for relief pursuant to Rule 60(b) of
the Federal Rules of Civil Procedure and Rule 9024 of the Federal Rules of
Bankruptcy Procedure. First, McCallan has not requested that the court so construe
the proceedings. Second, even if February 6, 2018 Order were construed as a denial
of a motion for relief from judgment or order pursuant to Rule 60(b), an appeal
would be fruitless because McCallan’s motion did not assert grounds for relief from
incarceration that were unavailable at the time of the October 2017 Orders imposing
the sanction. See In re Hollowell, 242 B.R. 541, 542–43 (Bankr. N.D. Ga. 1999)
(“Motions for reconsideration [under Rule 60(b) and Rule 9024] should not be used
to relitigate issues already decided or as a substitute for appeal. . . . Such motions
also should not be used to raise arguments which were or could have been raised
before judgment was issued.”); see also Nat. Gas Pipeline Co. of Am. v. Energy
Gathering, Inc., 99 F.3d 1134, 1134 & n.3 (5th Cir. 1996) (unpublished opinion)
(suggesting that, rather than finding a lack of appellate jurisdiction, an appellate
court could have affirmed the denial of a motion to vacate a contempt sanction on
the merits because “the ground on which the vacatur [was] sought existed at the time
the contempt order was entered and the contemnor failed to appeal timely from that
17

order”). Cf. Consol. Rail Corp. v. Yashinsky, 101 F.3d 702, 702 (6th Cir. 1996)
(unpublished opinion) (holding that an appeal lacked merit where “failure to take a
direct appeal from the imposition of the contempt preclude[d] . . . examination of
the propriety of the . . . decision to impose the contempt citation” and mere
“continued recalcitrance” after the initial contempt citation did not “qualify as the
equity needed for relief under Rule 60(b)(6)”).
B.

Permissive Appeal from an Interlocutory Order
28 U.S.C. § 158(a)(3) and Rule 8004 of the Federal Rules of Bankruptcy

Procedure allow appeals “with leave of the court, from . . . interlocutory orders and
decrees.” The district court has discretion in determining whether to allow an
interlocutory appeal. Matter of Ichinose, 946 F.2d 1169, 1176-77 (5th Cir. 1991).11
“Section 158(a) authorizes a district court to grant leave to appeal an interlocutory
order from a bankruptcy court, but does not indicate the standard a district court
should use in determining whether to grant leave to appeal.”

Id. at 1177.

“Nonetheless, district courts faced with the problem have adopted the standard under
28 U.S.C. § 1292(b) for interlocutory appeals from district court orders,” which
“consists of three elements: (1) a controlling issue of law must be involved; (2) the
question must be one where there is substantial ground for difference of opinion; and

11

See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc) (adopting as
binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981).
18

(3) an immediate appeal must materially advance the ultimate termination of the
litigation.” Id. In this case, the court’s discretion is also tempered by the general
rule that an interlocutory finding of civil contempt ordinarily is not subject to an
interlocutory appeal, but is reviewable only upon appeal from a final order. Howard
Johnson Co. v. Khimani, 892 F.2d 1512, 1515 (11th Cir. 1990) (“[A] finding of civil
contempt is generally not reviewable on interlocutory appeal.”); Combs v. Ryan’s
Coal Co., 785 F.2d 970, 977 (11th Cir. 1986) (applying the “general rule” of nonappealabilty to a contempt order that did not terminate a postjudgment proceeding).
There are exceptions to the general rule against appealability of interlocutory
civil contempt orders. “An order that imposes a fine or penalty for contempt that
must be obeyed within a certain period and may not be avoided by some other form
of compliance is immediately appealable, but an order of contempt that imposes a
fine or penalty that the party in contempt can avoid by complying with the earlier
order is interlocutory and not appealable.” S.E.C. v. Kirkland, 533 F.3d 1323, 1325
(11th Cir. 2008). The February 6, 2018 Order does not fit neatly into either of those
two categories because it did not make any new finding of contempt or impose any
new penalty or new sanction for contempt. Rather, the February 6, 2018 Order was
the product of the bankruptcy court’s ongoing effort to determine (1) whether
McCallan was still in contempt as found in previous orders that are not the subject
of this appeal (nor could they be, as any appeal from those prior orders would be
19

untimely)12 and (2) whether the sanction (jail) already imposed by one of those
previous orders is due to be lifted. See Hallahan, 768 F.2d at 755 (denying a motion
for leave to appeal where the contemnor did not “appeal from the November 20,
1984 contempt order,” but “rather . . . appeal[ed] from the December 17, 1984 order,
which set[ ] forth the conditions [the contemnor] must meet to purge himself of the
contempt order”). Cf. Kirkland, 533 F.3d at 1325 (holding that an order that required
a contemnor to repay a sum of money taken from frozen assets in violation of an
asset freeze order was not an appealable interlocutory order because it did not impose
a penalty or sanction for contempt, but merely required the contemnor to purge
himself of contempt by bringing himself into compliance with the court’s earlier
asset freeze order).
McCallan has not cited controlling authority that would support interlocutory
appellate review of an order that, like the February 6, 2018 Order, merely determines
that a contemnor has not yet purged himself of a previous contempt finding and
instructs the contemnor what remains to be done so that a previously imposed
contempt sanction can be lifted. Several general principles provide useful guidance.

12

With some exceptions not applicable in this case, appeals from final bankruptcy court
orders and motions for leave to appeal interlocutory bankruptcy court orders must be filed “within
14 days after entry of the judgment, order, or decree being appealed.” Fed. R. Bankr. P. 8002(a)(1);
Fed. R. Bankr. P. 8003(a)(1); Fed. R. Bankr. P. 8004(a)(1). McCallan was first found in contempt
on October 6, 2016. (Doc. # 7-7.) In October 2017, he was jailed as a result of his ongoing
contempt. (Doc. # 7-14.)
20

First, in distinguishing whether an interlocutory contempt order falls into the
appealable category or the nonappealable category, the Eleventh Circuit has
observed that “[t]he key is whether the contempt penalties imposed are conditional
or subject to modification,” and “[t]he goal is to avoid the risk of disrupting a
continuing, orderly course of proceedings below.” Combs, 785 F.2d at 976 (citation
and internal quotation marks omitted). Second, interlocutory orders that do not
impose a penalty or sanction for contempt, but represent “‘a continuing effort . . . to
prod [the contemnor] into compliance’” have been held not appealable. Kirkland,
533 F.3d at 1325 (quoting Combs, 785 F.2d at 976). Third, “[w]here the . . . court
[that issued the interlocutory order] is engaged in an ‘on-going intervention,’ as
evidenced by a contempt order that is ‘subject to modification,’” appellate review is
disfavored because “the effect of intervention by an appellate court would be ‘to tie
the hands of the . . . court [that issued the interlocutory contempt order], diminish
compliance with its orders, and augment [the appellate court’s] own workload.’” Id.
(quoting Combs, 785 F.2d at 976). Fourth, the Eleventh Circuit has held that, for an
interlocutory contempt order to be immediately appealable, “[t]here must be both a
finding of contempt and a noncontingent order of sanction. . . . Only at that point
may a contemnor have his appeal.” Combs, 785 F.2d at 976 (emphasis in original).
Fifth, even when an interlocutory civil contempt order does impose a sanction of
arrest, the order is generally not appealable when it “does not impose any sanction
21

that cannot be avoided through compliance” with the court’s prior orders. Rintin
Corp., S.A. v. Domar, Ltd., No. 05-17157 H, 2006 WL 936706, at *1 (11th Cir. Mar.
30, 2006); see Doyle v. London Guar. & Accident Co., 204 U.S. 599, 607-08 (1907)
(holding that no right of interlocutory appellate review existed from an interlocutory
civil contempt order pursuant to which the contemnor “may suffer imprisonment,”
but nevertheless “‘carrie[d] the keys of the prison in his own pocket’ (Re Nevitt, 54
C. C. A. 622, 117 Fed. 461), and by compliance with the order of the court, [could]
deliver himself from punishment”).
In accordance with these general principles, this court is not inclined to grant
a motion for permission to appeal where, pending further review and proceedings
and as part of an ongoing effort to prod a recalcitrant contemnor into compliance,
the bankruptcy court entered an interlocutory order that merely (1) found that the
contemnor had not yet purged himself of contempt (as opposed to finding him in
contempt in the first place or finding additional acts of contempt), (2) did not impose
any new sanctions for contempt (contingent or otherwise), and (3) provided
instructions as to what remained to be done to secure the lifting of a previously
imposed contempt sanction. Cf. Hallahan, 768 F.2d 755 (denying leave to appeal
where the contemnor did not timely appeal the original contempt order, but instead
sought leave to appeal from a subsequent order that set forth the conditions required
to purge the earlier contempt finding).
22

In undertaking its own jurisdictional research, the court found and considered
Brumfield, 188 F.3d 303. In Brumfield, the contemnor did not appeal the original
order finding contempt and imposing sanctions; rather, the contemnor appealed from
the denial of a motion to purge on grounds that, after entry of the original contempt
order, the contemnor had taken actions that he contended were sufficient to purge
the contempt.

The Fifth Circuit held that the denial of the motion to purge

constituted “a new adjudication of contempt and a new sanction, i.e., continued
incarceration.” Id. at 307.

As discussed in Section II.A., Brumfield and similar

cases will not be applied for three independent reasons: Those cases are not
controlling; they are distinguishable; and they were not cited by McCallan, who
bears the burden of demonstrating appellate jurisdiction.
Brumfield is distinguishable because it concerned whether “one who,
subsequent to being jailed for contempt, has taken steps which he contends should
purge himself of contempt should be afforded an effective avenue for appeal” from
an order denying a motion to purge. Id. at 307. Certainly, it makes sense that a
person should not lose the right to appeal his continued confinement simply because
he failed to complete additional steps to bring himself into compliance and obtain a
ruling on a motion to purge within the fourteen-day window for appealing the
original contempt order.

23

However, as discussed in Section II.A., McCallan does not argue that he
presented new evidence of compliance or of changed circumstances regarding his
ability to comply that were unavailable at the time of the October 2017 orders finding
him in contempt and sanctioning him with jail time. Therefore, the bankruptcy
court’s February 6, 2018 Order was not, in effect, a new finding of contempt or
imposition of a new sanction, but was essentially a continuation of the previous
contempt finding and previously imposed sanction. To hold otherwise would allow
McCallan to restart the appeal clock at any point (or multiple points) in the
bankruptcy court’s ongoing review process merely by filing multiple motions to
purge—or by challenging his confinement after every hearing or order in which he
is found to still be in contempt—without his having taken additional steps to comply
or provide evidence of changed circumstances.
Allowing McCallan to unilaterally restart the appeal clock at any time without
taking additional steps to purge or presenting new evidence of an inability to comply
would run contrary to all practical considerations, materially disrupt the bankruptcy
court’s ongoing efforts to secure compliance, waste judicial resources, cause judicial
inefficiency and unnecessary piecemeal litigation, and prejudice important interests
of the parties (including Appellee’s interest in obtaining the required disclosures and
McCallan’s interest in speedy release from confinement). Under the circumstances,
allowing an appeal would run contrary to the most fundamental considerations
24

relevant to determining whether to allow an appeal from an interlocutory contempt
order and/or an interlocutory order of a bankruptcy court. See Kirkland, 533 F.3d at
1325 (declining appellate review of a nonfinal contempt order where review would
disrupt the continuing efforts of the district court to prod the contemnor into
compliance); In re Martin Bros. Toolmakers, Inc., 796 F.2d 1435, 1437 (11th Cir.
1986) (noting that the purpose of the traditional concept of finality is “to avoid waste
of judicial resources and the delay inherent in piecemeal litigation,” and that the
collateral order doctrine so frequently applied to allow flexibility in appellate review
in bankruptcy cases is “grounded in the practicalities of the situation” to allow
review of “an order resolving issues independent and easily separable from the other
claims in the action . . . if delay would prejudice important interests of the parties
and if practical rather than technical factors also favor immediate review”); Ichinose,
946 F.2d at 1177 (noting that generally, “an immediate appeal must materially
advance the ultimate termination of the litigation” to justify granting a motion for
leave to appeal under § 158(a)(3)).
McCallan protests that he is being held without any meaningful opportunity
to purge himself of contempt (and, by implication, that there is no contingency that
he could fulfill to relieve himself of the sanction of imprisonment) because he has
already disclosed all documents and information in his possession over the course
of this litigation. See Commodity Futures Trading Comm’n v. Wellington Precious
25

Metals, Inc., 950 F.2d 1525, 1530 (11th Cir. 1992) (“[W]hen civil contempt
sanctions lose their coercive effect, they become punitive and violate the
contemnor’s due process rights.”). McCallan’s argument on this point is without
merit.
The February 6, 2018 Order explains what must be done for McCallan to
purge himself of contempt.

It requires him to file a single, complete set of

disclosures in response to discovery requests, file an updated accounting, amend his
bankruptcy schedules, and file a notice of compliance. Because the Order requires
responses to discovery requests to be “not merely supplements” but “complete in
and of themselves, so that a reader of the responses need not look in multiple
locations for responsive material,” McCallan will be required to resubmit some
information he has already submitted (Doc. # 1-1 at 9.) However, requiring a single,
complete, up-to-date discovery submission is not the same as requiring McCallan to
submit material he does not have or engage in repetitive acts of futility. Because
this is a bankruptcy case, the point of the discovery required of McCallan is, among
other things, to establish reliable, complete information as to the amount, location,
and/or disposition of certain assets. Those assets are (or were) in the custody or
control of a person the bankruptcy court has found, on numerous occasions, to have
been dishonest and deficient in his disclosures over the course of more than two
years since the original finding of contempt, and who at least once fraudulently
26

delayed a production deadline “for the purpose of moving, hiding, or otherwise
disposing of assets that could otherwise be used to satisfy the judgment against him
in this matter.” (Doc. # 7-8 at ¶¶ 2-3.)
Because of the nature, manner, timing, and volume of McCallan’s disclosures
to date, and because of his “long history of lying to the Court and flouting its orders”
(Doc. # 7-14), a review of the current record to determine precisely the full extent of
McCallan’s currently outstanding disclosures is, as the bankruptcy court said, “a
daunting task.” (Doc. # 1-1 at 9.) Requiring McCallan to submit complete, up-todate discovery responses (including material and information already submitted)
yields a single, finite, current submission that can be reviewed with maximum
efficiency13 to determine whether the disclosures are accurate, consistent, and
complete and whether McCallan has met all his obligations to the court and to the
opposing party. Thus, the order does provide McCallan with an opportunity to purge
himself of contempt, even if that opportunity requires resubmission of information
and material that he has already produced.
If McCallan takes steps to comply with the February 6, 2018 Order, he will,
of course, continue to remain in jail for some reasonable time period necessary for

13

Promoting judicial efficiency is in McCallan’s interest. The more efficiently the
bankruptcy court can determine whether he has finally purged himself of contempt, the faster the
jail doors may open.
27

the bankruptcy court to review the record, possibly hold further hearings, and
confirm whether contempt has been purged.

McCallan takes issue with the

bankruptcy court’s chosen method for review and confirmation, which allows the
opposing party thirty days to determine whether she has objections to McCallan’s
submission before the court decides whether to schedule another hearing. McCallan
argues that the February 6, 2018 Order places the keys to the jail in Appellee’s
pocket, thereby subjecting him to imprisonment for some time period (not to exceed
30 days) in which he cannot take further action to purge himself of contempt.14
McCallan’s argument does not support granting the motion for leave to appeal
at this time. It remains to be seen whether McCallan will, in fact, trigger Appellee’s
review period by first complying with the February 6, 2018 Order and filing a
certification of compliance. Reviewing the issue now will not materially advance
the ultimate resolution of the contempt proceedings and may well hinder them with
unnecessary interference in the bankruptcy court’s ongoing intervention to secure

14

As a practical matter, judicial efficiency is the second most important factor in setting
the speed at which the doors to McCallan’s cell can be opened. The most important factor, of
course, is the pace of McCallan’s own efforts to purge himself of contempt. The court makes no
finding as to the merits of the bankruptcy court’s approach or as to whether the bankruptcy court’s
February 6, 2018 Order could reasonably be construed as placing the keys to the jail in Appellee’s
hands. The February 6, 2018 Order could also be construed as streamlining the remaining review
process by designing an efficient method to identify what, if any, disclosures remain outstanding,
and by limiting the scope of further hearings solely to those items the parties intend to dispute.
The alternative (for the bankruptcy court itself to review and assess every single item in every
single disclosure for veracity and completeness) would be highly inefficient and may result in
unnecessary delay from hearings, briefs, or other proceedings on matters that turn out not to be in
dispute.
28

McCallan’s compliance and to determine the full extent to which McCallan’s
submissions are deficient. See Kirkland, 533 F.3d at 1325 (holding that, where a
remedial monetary sanction was intended to allow the contemnor to purge himself
of his contemptuous conduct and comply with the court’s asset freeze order,
“‘[a]ppellate review . . . would be disruptive of what [is] obviously a continuing
effort on the part of the district court to prod [the contemnor] into compliance.’”
(quoting Combs, 785 F.2d at 976)); Ichinose, 946 F.2d at 1177 (noting that, in
general, considerations guiding the court’s discretion on a motion for leave to appeal
from an interlocutory bankruptcy court order include the requirement that “an
immediate appeal must materially advance the ultimate termination of the
litigation”).
In the event that McCallan does eventually trigger Appellee’s review period,
an appeal or motion for leave to appeal the February 6, 2018 Order itself may not be
timely, but other remedies would be available, such as a motion for appropriate relief
from the bankruptcy court (e.g., a motion for release on bond or a new motion to
purge contempt based on additional disclosures made in compliance with the
February 6, 2018 Order, which might start a new time clock for appeal) or writs of
habeas corpus or mandamus. See 28 U.S.C. § 2241(a), (c)(2)-(3) (providing habeas
relief for a person who is “in custody for an act done or omitted in pursuance of . . .
an order, process, judgment or decree of a court or judge of the United States,” or
29

who is “in custody in violation of the Constitution or laws or treaties of the United
States”); Hallahan, 768 F.2d at 755 (“In the instant case, appellant does have an
alternative means for obtaining review of the propriety of his continued incarceration
for contempt even though he failed to timely appeal the contempt order. One of the
avenues open to him is a petition for review pursuant to 28 U.S.C. § 2255, statutory
federal habeas corpus relief.”).
Therefore, the court declines to exercise its discretion to grant the motion for
leave to appeal. Cf. Hallahan, 768 F.2d at 755 (declining to grant a motion for leave
to appeal where the order that was the subject of the appeal merely “set[ ] forth the
conditions [the contemnor] must meet to purge himself of a [previous] contempt
order”).
III.

CONCLUSION

Accordingly, it is ORDERED as follows:
1.

Appellant Timothy McCallan’s amended motion (Doc. # 1-1) for leave to file

an interlocutory appeal is DENIED.
2.

McCallan’s Emergency Motion (Doc. # 2) to expedite the appeal pursuant to

Rule 8003(a)(2)(B) of the Federal Rules of Bankruptcy Procedure is DENIED as
moot.
3.

Appellee Carly B. Wilkins’s motion (Doc. # 3) to dismiss for lack of

jurisdiction is GRANTED.
30

4.

Appellee’s motion (Doc. # 5) to strike the motion for leave to expedite the

appeal is DENIED as moot.
5.

Appellee’s motion to strike McCallan’s brief in support of the appeal (Doc. #

14) is DENIED as moot
6.

The appeal is DISMISSED.
Final judgment will be entered separately.
DONE this 19th day of March, 2018.

/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

31