Gowdy v. Mitchell
Filing
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Opinion and Order denying Motion (COMPLAINT) for Leave to File Appeal of Bankruptcy Order. This case is CLOSED. Signed by Judge Kenneth A. Marra on 4/22/2013. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-21100-MC-MARRA
In re:
OCEAN WARRIOR, INC.,
Debtor
_____________________________________/
OPINION AND ORDER
This cause is before the Court upon the Motion for Leave to File an Appeal (DE 1). The
Motion is fully briefed and the Court held oral argument on April 16, 2013. The Court has
carefully considered the submissions and the arguments of the parties and is otherwise fully
advised in the premises.
This motion for leave to appeal arises out of a 20 year old bankruptcy case. A detailed
history of this proceeding is unnecessary for the purposes of this motion. Instead, the Court will
highlight relevant portions of the record.
On May 4, 2012, the bankruptcy court entered an order finding Appellant liable for civil
contempt. The bankruptcy court found Appellant in civil contempt because he violated
numerous provisions of previous orders, but allowed Appellant to purge the finding of civil
contempt by either returning to this jurisdiction a commercial fishing vessel which Appellant
operated or depositing the value of the vessel with the bankruptcy court for the administration of
the Debtor’s estate. Appellant was given 90 days to purge his contempt before further sanctions
were imposed. On January 12, 2013, Appellant filed a motion for relief from the May 7, 2012
contempt order and to reopen evidence. The bankruptcy court denied the motion and this appeal
followed.
The Court begins its analysis by noting that both parties concede that the appeal of the
order in question is an interlocutory order. As such, Appellant has “the burden of persuading the
court that exceptional circumstances justify a departure from the basic policy of postponing
appellate review until after the entry of [a] final [order].” Coopers & Lyband v. Livesay, 437 U.S.
463, 475 (1978) (in discussing the role of the court of appeals in interlocutory appeals); see also
United States Trustee v. PHM Credit Corp., 99 B.R. 762, 767 (E.D. Mich. 1989) (district courts
should allow interlocutory bankruptcy appeals sparingly since interlocutory bankruptcy appeals
should be the exception, not the rule).
An order of civil contempt that imposes a fine or penalty that a party can avoid by
complying with an earlier order is not a final order. See S.E.C. v. Kirkland, 533 F.3d 1323, 1325
(l1th Cir. 2008); see also Carpenter v. Mohawk Indust., Inc., 541 F.3d 1048, 1055 (l1th Cir.
2008) (stating that "in order for the contempt order to be immediately appealable, '[t]here must be
both a finding of contempt and a noncontingent order of sanction."') (citing Combs v. Ryan's
Coal Co., Inc., 785 F.2d 970, 976 (l1th Cir. 1986)). However, “[t]he imposition of sanctions . . .
is a prerequisite for appellate review of a contempt order.” Kirkland, 533 F.3d at 1325.
Here, the record shows that Appellant had the opportunity to purge the contempt by
taking the actions directed by the bankruptcy court within the specified time. More importantly,
for purposes of the present motion, the contempt order states that if Appellant fails to purge
himself of the contempt, “upon request for further hearing,” the bankruptcy court will consider
the imposition of sanctions. At this time no sanctions have been imposed, and therefore
Defendant has not suffered any adverse impact from the contempt order warranting immediate
appellate review. At any future hearing where sanctions are sought against Appellant, he will
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have the opportunity to convince the bankruptcy court of his present inability to comply with the
contempt order. See United States v. Rylander, 460 U.S. 752, 757 (1983)(“In a civil contempt
proceeding . . . a defendant may assert a present inability to comply with the order in
question. . . . While the court is bound by the enforcement order, it will not be blind to
evidence that compliance is now factually impossible. . .
. It is settled, however, that in
raising this defense, the defendant has a burden of production.”) (emphasis in the original). If
Appellant is unsuccessful in convincing the bankruptcy court of his inability to comply with the
requirements of the contempt order and sanctions are imposed on him, at that time he will have
suffered an adverse impact and he will be able to take an appeal as a matter of right. Carpenter,
541 F.3d at 1055; Kirkland, 533 F.3d at 1325. The current state of the proceedings, however,
leaves Appellant in the same position as after the entry of the May 7, 2012 bankruptcy order;
namely, without any sanctions being imposed and the right to demonstrate a present inability to
comply with the order when sanctions are sought against him. Until then, Appellant cannot meet
any of the requirements for this Court entertaining an interlocutory appeal.
For the foregoing reasons, the Motion for Leave to File an Appeal (DE 1) is DENIED.
The Clerk shall close this case and all pending motions are denied as moot.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 22nd day of April, 2013.
______________________________________
KENNETH A. MARRA
United States District Judge
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