Fish v. Pasco County Florida Traffic Division et al

Filing 14

ORDER: The Trustee's Motion to Dismiss Appeal 10 is DENIED WITHOUT PREJUDICE. Fish is directed to file an amended brief addressing only the appeal assigned to the undersigned District Judge by FEBRUARY 28, 2013. Failure to do so may result i n the dismissal of this appeal without prejudice. The Trustee may file a renewed Motion to Dismiss or an Appellate Brief within 14 days of Fish's filing of an amended brief. In the instance that Pasco County seeks to be heard in this matter, i t is directed to retain counsel and file a notice reflecting the same by February 28, 2013. Fish's Motion for Injunction under Federal Rules of Civil Procedure 65(b)(1) 12 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 2/6/2013. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IN RE:
TERRY LEE FISH,
Debtor.
_______________________________/
TERRY LEE FISH,
Appellant,
v.

Case No. 8:12-cv-2498-T-33
Bankr. No. 8:11-bk-19061-CPM

PASCO COUNTY FLORIDA TRAFFIC
DIVISION, PAULA O’NEILL, and JON
M. WAAGE as Chapter 13 Bankruptcy
Trustee,
Appellees.
_______________________________/
ORDER
This matter comes before the Court pursuant to Appellee
Jon M. Waage, Chapter 13 Bankruptcy Trustee’s Motion to
Dismiss Appeal (Doc. # 10), which was filed on December 17,
2012.

Pro se Appellant Terry Lee Fish filed a Response on

December 28, 2012. (Doc. # 11).

Also before the Court is

Fish’s Motion for Injunction under Federal Rule of Civil
Procedure 65(b)(1), filed on January 24, 2013. (Doc. # 12).
The Trustee filed a Response in Opposition to the Motion for
Injunction (Doc. # 13) on January 31, 2013.
the Motions as outlined below.

The Court denies

I.

Procedural Background
Fish filed a pro se voluntary Chapter 7 bankruptcy case

on October 12, 2011.

(B.R. Doc. # 1). On October 21, 2011,

the Bankruptcy Court granted Fish’s application to proceed in
forma pauperis. (B.R. Doc. # 11).

On March 2, 2012, the

Bankruptcy Court granted Fish a Discharge pursuant to 11
U.S.C. § 727. (B.R. Doc. # 29). Importantly, the Discharge
specified, “Debts for most fines, penalties, forfeitures, or
criminal restitution obligations” are “not discharged in a
chapter 7 bankruptcy case.” Id. at 2 (emphasis in original).1
The Bankruptcy Court closed the case on March 30, 2012. (B.R.
Doc. # 30).
On April 24, 2012, Fish filed a Motion for Sanctions
against the Pasco County Florida Traffic Division and Paula S.
O’Neill, Clerk and Comptroller. (B.R. Doc. # 33).

Fish

specified in the Motion for Sanctions:
The Debtor requests that his Chapter 7 Bankruptcy
be Re opened so that the Bankruptcy Court can re
affirm that the Debtor’s Traffic Citations were
discharged on march 2, 2012 by order of the Court.
. . . The Pasco County Florida Traffic Division has
failed to allow the Debtor to obtain his Florida

1

11 U.S.C. § 523(a)(7) exempts from discharge a debt
“to the extent such debt is for a fine, penalty or forfeiture
payable to and for the benefit of a governmental entity, and
is not compensation for actual pecuniary loss, other than a
tax penalty.”
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Driver’s License which was suspended for non
payment of three (3) traffic citations. . . . The
Debtor states that the $732.50 in fines is a
financial hardship and the Debtor due to his
poverty can not pay.
Id. at 1.
The Bankruptcy Court held a hearing on the Motion for
Sanctions on August 14, 2012, and denied the Motion as
follows: “The traffic fines are not dischargeable.

Pasco

County’s attempt to collect them is not violative of the
Debtor’s discharge.” (B.R. Doc. # 49).

On September 4, 2012,

Fish filed an Appeal of the Order denying the Motion for
Sanctions. (B.R. Doc. # 54).

That appeal is before this

Court.
During the pendency of the appeal, the Bankruptcy Court
has properly continued to exercise jurisdiction over this
case.

On September 18, 2012, the Bankruptcy Court converted

the Chapter 7 case to a Chapter 13 case pursuant to Fish’s
request. (B.R. Doc. # 61).

On October 11, 2012, Fish filed a

Motion for Hardship Discharge requesting, inter alia, that the
aforementioned traffic citations in Pasco County be discharged
due

to

his

inability

to

pay

them.

(B.R.

Doc.

#

71).

Thereafter, on November 13, 2012, Pasco County filed a Motion
to convert Fish’s case back to a Chapter 7 case. (B.R. Doc. #
75).

The Bankruptcy Court denied the Motion for Hardship
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Discharge in an Order dated November 21, 2012, and set the
Motion to Convert the case to a Chapter 7 case for a hearing.
(B.R.

Doc.

#

77).

In

denying

the

Motion

for

Hardship

Discharge, the Court specified: “The Debtor shall not receive
a discharge, hardship or otherwise, in this chapter 13 case.”
Id. at 1.
On November 30, 2012, Fish filed an appeal of the
Bankruptcy

Court’s

denial

Discharge. (B.R. Doc. # 81).

of

his

Motion

for

Hardship

That appeal is not before this

Court.
On November 30, 2012, Fish filed his Appellate Brief in
this Court.

(Doc. # 8).

Rather than briefing the Court as to

the propriety of the appealed Order, dated August 22, 2012,
which denied the Motion for Sanctions, Fish has briefed the
Court as to the Bankruptcy Court’s November 21, 2012, denial
of his Motion for Hardship Discharge.

The Trustee responded

in kind by filing a Motion to Dismiss the Appeal on the basis
that the Bankruptcy Court’s decision to deny the Hardship
Discharge is not a final, appealable order.

(Doc. # 10).

Among other contentions, the Trustee submits that “Orders
denying a hardship discharge before the approval of the plan
are by their nature not final, since they are not ripe for
decision and do not complete the judicial labor.” Id. at 2.
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Fish responded to the Motion to Dismiss (Doc. # 11) raising
inapposite arguments tailored to the Order denying the Motion
for Hardship Discharge, which is not the subject of the
present appeal.
Thereafter, Fish filed a Motion requesting, inter alia,
that this Court enjoin Pasco County and the Bankruptcy Court
from taking further action in the bankruptcy case. (Doc. #
12).

These Motions are ripe for consideration.
A.

Motion to Dismiss Appeal

“The general rule in this circuit is that an appellate
court has jurisdiction to review only those judgments, orders
or portions thereof which are specified in an appellant's
notice of appeal.” Osterneck v. E.T. Barwick Indus., Inc., 825
F.2d 1521, 1525 (11th Cir. 1987).

Fish’s September 4, 2012,

Notice of Appeal states that it is an appeal “from the final
appealable order denying the discharge of the traffic fines
and penalties entered in this action on August 22, 2012.”
(Doc. # 1-1).

As noted above, the Bankruptcy Court’s August

22, 2012, Order denied the Motion for Sanctions against Pasco
County and also specified that “[t]he traffic fines are not
dischargeable.

Pasco County’s attempt to collect them is not

violative of the Debtor’s discharge.” (Doc. # 1-2; B.R. Doc.
# 49)(emphasis in original).
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The Trustee’s three-paragraph Motion to Dismiss, which is
aimed at an appeal that is not pending before this Court, is
misapplied.

The Court therefore denies the Motion to Dismiss

without prejudice. So that this appeal may be properly poised
for disposition, the Court directs Fish to file, by February
28, 2013, an amended brief addressing only the appeal assigned
to the undersigned District Judge.

Failure to do so may

result in the dismissal of the appeal without prejudice.

The

Trustee may file a renewed Motion to Dismiss or an Appellate
Brief within 14 days of Fish’s filing of an amended brief.2
B.

Motion for Injunction

Although Fish references Rule 65 of the Federal Rules of
Civil

Procedure

in

his

Motion,

it

is

Federal

Rule

of

Bankruptcy Procedure 8005 that governs Fish’s request for an
injunction against “the Defendant and the Federal Bankruptcy
Court.” (Doc. # 12).3

Because Fish seeks to enjoin the

2

The Court notes that Pasco County is no longer
represented by counsel in this matter. Its former counsel,
John P. Dillman, Esq., was terminated by the Court on January
2, 2013, due to his failure to comply with the Court’s
administrative procedures regarding electronic filing. (Doc.
# 7). In the instance that Pasco County seeks to be heard in
this matter, it is directed to retain counsel and file a
notice reflecting the same by February 28, 2013.
3

Fish repeats his error regarding the subject of this
appeal in the Motion for an Injunction, wherein Fish states:
(continued...)
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action of the Bankruptcy Court, such Motion is tantamount to
a motion to stay the bankruptcy case pending this appeal.
Rule 8005 requires that a motion to stay proceedings first be
presented to the Bankruptcy Court.

However, if an emergency

exists, such motion to stay may be first presented to the
district court and the movant must “show why the relief,
modification,

or

termination

was

not

obtained

from

the

bankruptcy judge.” Id.; see also Brampton Plantation, LLC v.
German Am. Capital Corp., No. 4:12-cv-17, 2012 U.S. Dist.
LEXIS 28930, at *14-15 (S.D. Ga. March 5, 2012) (applying Rule
8005 in the context of a bankruptcy appeal).
Fish did not first present the Motion to the Bankruptcy
Court

and

has

not

demonstrated

to

this

Court

why

such

emergency relief is required in this case. Accordingly, the
Motion is denied.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:

3

(...continued)
“The Appellant filed an Appeal on December 5, 2012, for the
bankruptcy rulings of August 22, 2012, and November 21, 2012.”
(Doc. # 12 at 1).
As previously noted, Fish’s Notice of
Appeal, which was actually filed on September 4, 2012, appeals
only the Bankruptcy Court’s August 22, 2012, Order. (Doc. # 11).
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(1)

The Trustee’s Motion to Dismiss Appeal (Doc. # 10) is
DENIED WITHOUT PREJUDICE.

(2)

Fish is directed to file an amended brief addressing only
the appeal assigned to the undersigned District Judge by
FEBRUARY 28, 2013.

Failure to do so may result in the

dismissal of this appeal without prejudice.
(3)

The Trustee may file a renewed Motion to Dismiss or an
Appellate Brief within 14 days of Fish’s filing of an
amended brief.

(4)

In the instance that Pasco County seeks to be heard in
this matter, it is directed to retain counsel and file a
notice reflecting the same by February 28, 2013.

(5)

Fish’s Motion for Injunction under Federal Rules of Civil
Procedure 65(b)(1) (Doc. # 12) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this 6th

day of February, 2013.

Copies: All parties of record
Pasco County Traffic Division
attn: Paula S. O’Neill, Clerk and Comptroller
7530 Little Road
PO BOX 338
New Port Richey, FL 34654-0338

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