Richert v. Murphy et al

Filing 12

ORDER denying 11 Renewed Emergency Motion to Stay Pending Appeal. Signed by Judge Robert N. Scola, Jr. on 4/3/2023. See attached document for full details. (ls)

United States District Court
for the
Southern District of Florida
Elizabeth K. Richert, Appellant,
v.
Kathleen White Murphy, and
Thomas White, Appellees.

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Bankruptcy Appeal
Case No. 23-20779-Civ-Scola

Order Denying Renewed Motion to Stay Pending Appeal
This matter is before the Court on the renewed emergency motion to stay
pending appeal filed by Appellant Elizabeth K. Richert. (Renewed Mot., ECF No.
11.) The Court previously denied the Appellant’s motion to stay without
prejudice due to the motion’s many deficiencies and failures to abide by the
Southern District of Florida Local Rules. (Order, ECF No. 10.) Having reviewed
the motion, the record, and the relevant legal authorities, the Court now
denies the renewed motion because it once again fails to comply with the Local
Rules, fails comply with the Court’s order, and fails to provide sufficient
substantive support to stay the underlying bankruptcy proceedings. (ECF No.
11.)
The Court denied the Appellant’s original motion for failure to comply
with Local Rules 7.1(a)(2), 7.1(a)(3), and 7.1(d)(1), as well as CM/ECF
Administrative Procedures Section 3I(6). (Order). The Appellant failed to provide
a proposed order (S.D. Fla. L.R. 7.1(a)(2); CM/ECF Admin. P. 3I(6), failed to
provide a date by which a ruling was needed and why (S.D. Fla. L.R. 7.1(d)(1)),
and failed to provide a certificate of conferral detailing how the Appellant
conferred with counsel for the parties and non-parties that may have been
affected by the relief requested, along with those parties’ and non-parties’
position on the relief requested. (S.D. Fla. L.R. 7.1(a)(3)). Now, the Appellant
renews her motion, but still fails to comply with the majority of the rules the
Court identified in its prior order. 1

1 Although the Court did not address this issue in its prior Order, both the original motion and
the renewed motion fail to comply with the Local Rules’ requirements on the length and
typographical formatting of motions. S.D. Fla. L.R. 5.1(a)(4), 7.1(c)(1). The original motion,
including memorandum of law, was 25 pages long, and the renewed motion is 27 pages. The
Local Rules limit the page length of motions to 20 pages. S.D. Fla. L.R. 7.1(c)(1). And both the
original and the renewed motion include multiple sections of single-spaced body text, when the
Local Rules require that typewritten documents use no less than 1 1/2 spacing. (S.D. Fla. L.R.
5.1(a)(4). This is yet another reason the Court may deny the motion.

Once again, the Appellant fails to provide a date by which she believes a
ruling on the “emergency motion” is necessary. S.D. Fla. L.R. 7.1(d)(1). 2 The
Appellant provides several upcoming hearing dates in the underlying
bankruptcy action as justification for why the motion is an emergency, but
never actually states which of those upcoming hearings before which the
motion would need to be ruled on. (Renewed Mot. at 1.)
Further, the Appellant fails to provide any details regarding her claimed
efforts at conferral. Her conferral statement is limited to the following: “I hereby
certify that Debtor and Debtor’s co-counsel reached out in a good faith effort to
resolve the issue(s) on appeal by agreement, prior to re-filing this Motion, and
were unable to do so.” (Renewed Mot. at 25.) This conferral statement is
inadequate for multiple reasons. First, it fails to state to whom the Debtor’s
counsel “reached out” to confer. Without explicit identification of the parties
(and non-parties) with whom the moving party conferred, the Court may not be
able to determine if the movant actually conferred with “all parties or nonparties who may be affected by the relief sought in the motion in a good faith
effort to resolve by agreement the issues to be raised in the motion.” (S.D. Fla.
L.R. 7.1(a)(3) (emphasis added). Second, the conferral statement fails to identify
what “reasonable efforts” the Appellant’s counsel made in her attempt to
confer, and even fails to state without support that the Appellant’s counsel
made “reasonable efforts” to confer at all. Id. As the Court identified in its prior
order, and as the Local Rule makes clear,
Failure to comply with the requirements of this Local Rule may be cause
for the Court to grant or deny the motion and impose on counsel an
appropriate sanction, which may include an order to pay the amount of
the reasonable expenses incurred because of the violation, including a
reasonable attorney’s fee.
Id. Accordingly, the Court denies the Appellant’s motion for its repeated failure
to abide by the plain requirements of the Local Rules and the Court’s prior
order. See Aguilar v. United Floor Crew, Inc. </i>, No. 14-CIV-61605, 2014 WL
6751663, at *1 (S.D. Fla. Dec. 1, 2014) (Bloom, J.). (“The purpose of the rule is
to ensure judicial economy and prevent courts from considering issues the
parties could agree on independently, and to ascertain whether the Court need
wait for a response from the opposing party before deciding the motion.”)

The Court also observes that the renewed motion fails to provide a certification of true
emergency, as required by Local Rule 7.1(d)(1).
2

Finally, the Court also observes that the motion fails to establish why
filing the motion to stay in the Bankruptcy Court would be “impracticable,” as
required by the Bankruptcy Rules of Procedure. Fed. R. Bankr. P. 8007(b)(2)(A).
In support of her motion, the Appellant offers eighteen pages of “factual”
support relating to the underlying bankruptcy proceedings that largely deals
with allegations of misbehavior by the Appellant’s former attorney, the United
States Trustee, and creditors in front of the Bankruptcy Court. (Renewed Mot.
¶¶ 6-24.) And the Appellant states that the Bankruptcy Court has at times
ruled against her on various motions. (Id. ¶¶ 1-3, 13, 18, 19.) While the
Appellant does not expressly state this, it appears that the Appellant filed her
motion in the District Court because she believed that the Bankruptcy Court
would not rule in her favor. (Id. at 1 (“Pursuant to Rule 8007(b)(2)(A), Fed. R.
Bankr. P., Debtor has filed this Motion in the District Court because the
Factual and Procedural Background in this case, infra, renders filing this
motion in the bankruptcy court impracticable.”).)
This does not constitute a valid reason to file a motion to stay pending a
bankruptcy appeal in the District Court, however. The Court lacks jurisdiction
to hear the Appellant’s motion to stay unless the motion has been filed with
and denied by the Bankruptcy Court, or the Appellant demonstrates that filing
the motion with the Bankruptcy Court would be “impracticable.” Bank of Am.,
N.A. v. Arregoces, No. 17-60786-CIV, 2017 WL 7788356, at *3 (S.D. Fla. June
16, 2017) (Bloom, J.) (citing Fed. R. Bankr. P. 8007(b)(2)(A) and In re Howes,
CV ELH-16-00840, 2016 WL 4944983, *3 (D. Md. Sept. 15, 2016)). Crucially,
“[a] party’s failure to submit a motion to stay to a bankruptcy court in the first
instance because of prior adverse rulings is not a sufficient showing of
impracticability.” Id. at *2. Here, the Appellant does not state the motion has
been filed in and denied by the Bankruptcy Court. (See generally Renewed
Motion.) And the Appellant makes no showing that “a bankruptcy judge was
unavailable, or that, to be effective, relief must be immediate.” Arregoces, 2017
WL 7788356, at *2. Therefore, the Appellant has failed to establish that filing
her motion to stay in the Bankruptcy Court would be impracticable, and her
motion must be denied. Fed. R. Bankr. P. 8007(b)(2)(A).
For the reasons stated above, the Court denies the Appellant’s renewed
emergency motion to stay pending appeal. (ECF No. 11.)
Done and ordered in Miami, Florida, on April 3, 2023.
________________________________
Robert N. Scola, Jr.
United States District Judge