IPPOLITO et al v. IPPOLITO et al

Filing 45

OPINION. Signed by Judge John Michael Vazquez on 5/24/17. (cm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY

IN RE TOBIA IPPOLITO,

Civil Action Nos. 16-03 827;

Debtor

1603808
OPINION

John Michael Vazguez, U.S.D.J.
I.

INTRODUCTION

This matter comes before the Court by way of pro se Debtor Tobia Ippolito’s motions to
intervene into the appeals of two separate orders arising from the same underlying bankruptcy
proceeding.’ The Court reviewed all submissions in support and opposition, and considered the
motion without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule
78.1(b). For the reasons that follow, the Court denies Mr. Ippolito’s motion.
I. BACKGROUND AND PROCEDURAL HISTORY

In the underlying bankruptcy matter (the “Bankruptcy Proceeding”), Judge Gambardella
entered two orders that were subsequently appealed to this Court. The first order was entered on
May 25, 2016, and denied Ms. Ippolito’s motion to dismiss Mr. Ippolito’s Chapter 7 bankruptcy

Mr. Ippolito’s briefs are filed as D.E. 19 and 25 in docket numbers 16-3827 and 16-3808,
respectively. The submissions in support of the motions to intervene are identical in both matters.
Accordingly, for ease of reference, the Court will collectively refer to the submissions as “T.
Ippolito’s Br.” Lisa Ippolito’s briefs in opposition are also identical in both matters and will
therefore collectively be known as “L. Ippolito’s Opp.” Mr. Ippolito’s submissions in reply are
also the same in both matters and shall collectively be known as “T. Ippolito’s Rep.”

petition (the “first Order”). Docket No. 16-3827, D.E. 20-1, Ex. 1 (the “Bankruptcy Docket”) at
D.E. 55. On May 31, 2016, Judge Gambardella entered an order granting Ms. Ippolito’s request
for relief from the automatic stay (the “Second Order”). Id. at D.E. 60. On June 7, 2016, Ms.
Ippolito filed a notice of appeal of the First Order. Id. at D.E. 63. On June 8, 2016, the Chapter 7
Trustee filed a notice of appeal of the Second Order. Id. at D.E. 64.
At all relevant times during the Bankruptcy Proceeding, Mr. Ippolito was represented by
counsel.2 Mr. Ippolito’s counsel was registered on CM/ECf, the Court’s electronic filing system,
and therefore received notifications that the notices of appeal were filed. Mr. Ippolito did not file
a notice of appeal of either order, and he did not file an opposition to either of the appeals.
According to Mr. Ippolito, he was incarcerated multiple times in the summer of 2016.
Docket No. 16-3 827, D.E. 19-3

¶ 7.

On June 13, 2016, Mr. Ippolito was incarcerated for two days.

Id. On June 20, 2016, he was incarcerated for “several days.” Id. On August 6, 2016, he was

incarcerated for fifty-one days until he was released on September 26, 2016. Id.
On October 21, 2016, Mr. Ippolito requested a conference call with the Court to address
the alleged non-service of certain filings related to the two pending appeals. Docket No. 16-3 808,
D.E. 11. On November 18, 2016, the Court held the conference call and subsequently ordered that
“if Mr. Ippolito wishes to participate in the above-referenced bankruptcy appeals, on or before
December 6, 2016, he shall file a formal motion requesting to do so.” Id. at D.E. 18. On December
7, 2016, Mr. Ippolito filed his motions to intervene.
II. LAW AND ANALYSIS

2

On August 2, 2016, about two months after the notices of appeal of the First and Second Orders
were filed, Mr. Ippolito’s counsel filed a motion to withdraw as his attorney. Id. at D.E. 85.
Judge Gambardella granted the motion on August 29, 2016. Id. at D.E. 92.
2

Mr. Ippolito argues that under Federal Rule of Civil Procedure 24, he should be permitted
to intervene in the appeals of the First and Second Orders. Mr. Ippolito maintains that while
incarcerated, he was not served with either of the notices of appeal. T. Ippolito’s Br. at 6. Mr.
Ippolito contends that he was “without counsel during the statutory filing deadlines” and contacted
the Court “as soon as practicable.

.

.

to seek intervention.” Id. at 7.

Ms. Ippolito responds that at all relevant times, Mr. Ippolito was represented by counsel
and was properly served with all pertinent filings via CM/ECF. L. Ippolito Opp. at 2. According
to Ms. Ippolito, Mr. Ippolito had an opportunity to join in the bankruptcy appeals, but chose not to
do so. Id. at 5. Therefore, she argues that pursuant to Federal Rule of Bankruptcy Procedure
$0 13(g), Mr. Ippolito should not be permitted to intervene. Id. at 6.
Intervening in a bankruptcy appeal is governed by Rule 80 13(g) of the Federal Rules of
Bankruptcy Procedure, which provides that
Unless a statute provides otherwise, an entity that seeks to intervene
in an appeal pending in the district court or [bankruptcy appellate
panel] must move for leave to intervene and serve a copy of the
motion on the parties to the appeal. The motion or other notice of
intervention authorized by statute must be filed within 30 days after
the appeal is docketed. It must concisely state the movant’s interest,
the grounds for intervention, whether intervention was sought in the
bankruptcy court, why intervention is being sought at this stage of
the proceeding, and why participating as an arnicus curiae would not
be adequate.
A potential intervener is generally not a party to the underlying bankruptcy matter. Here, Mr.
Ippolito was (and still is) a party to the Bankruptcy Proceeding. Instead of filing a motion to
intervene, he should have filed a motion to file an appeal or cross-appeal out-of-time. However,
even assuming that Rule 80 13(g) applies to a party of the underlying bankruptcy proceeding, Mr.
Ippolito has not presented sufficient facts justifiing the relief he seeks.

3

The crux of Mr. Ippolito’s argument is that he was not on notice of the pending appeals
because he was incarcerated and was not served with the pertinent documents relating to the
appeals. Service, however, was effectuated upon Mr. Ippolito’s counsel by means of CM/ECF.
The notices of appeal for the first and Second Order were electronically ified on the Bankruptcy
Docket on May25 and May 31, 2016, respectively. At these times, Mr. Ippolito was represented
by counsel, and was therefore properly served once the notices were posted on the bankruptcy
court’s electronic docket. See Fed. R. Bankr. P. $0 11(b) (“Service on a party represented by
counsel must be made on the party’s counsel.”); id. at 8011(c)(1) (stating that [s]ervice must be
made electronically, unless it is being made by or on an individual who is not represented by
counsel”); Id. at 8011(c)(2) (“Service by electronic means is complete on transmission[.]”).
Moreover, on July27 and 28, 2016, Mr. Ippolito’s counsel (who still represented him at this time)
was served with each appellant’s brief and supporting documents. Docket No. 16-3827, D.E. 201 Exs. B and C. The fact that Mr. Ippolito was incarcerated3 at various times during the summer
of 2016 and claims not to have been personally served with these documents does not change the
analysis.

The federal Rules of Bankruptcy Procedure require service on the attorney of a

represented party, not the party himself. Therefore, Mr. Ippolito was properly served and his
motions to intervene are denied.4

Even if the Court were to consider Mr. Ippolito’s incarceration, his arguments would be
unavailing. First, he was not incarcerated on either May 25 or May 31 when the notices of
appeal were entered. Moreover, he was not incarcerated on either July 27 or July 28 when the
appellate briefs and supporting documents were filed. In between May and July filings, he was
not incarcerated for the vast majority of time. He was incarcerated for two days starting June 13
and for “several days” beginning June 20. His fifty-one-day period of incarceration did not
begin until August 6, which was over a week after the July 28 materials were filed.
The Court notes that Mr. Ippolito argues to intervene pursuant to Federal Rule of Civil Procedure
24. As this is a bankruptcy case, it is controlled by the Federal Rules of Bankruptcy Procedure.
4

III. CONCLUSION
For the reasons stated above, Mr. Ippolito’s motions to intervene are denied.

An

appropriate Order on each docket accompanies this Opinion.

Dated: May24, 2017
John Michael Vazque

,

.

.

.J.

See Fed. R. Bankr. Pro. 1001 (“The Bankruptcy Rules and forms govern procedure in cases under
title 11 of the United States Code.”). Accordingly, the Court does not conduct a Rule 24 analysis.
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