NEWTON et al v. PALMER

Filing 24

OPINION. Signed by Judge Kevin McNulty on 6/5/2019. (ld, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
litRe

Civ. Nos. 17-8377, 17-8378, 17-8574,
17-11637, 17-1 1856, 17-11859

ANDREA NEWTON,
Debtor.

Bankruptcy Case No. 17-190 19
Newton et aL,
Plaintiff,
OPINION
V.

Clinton Palmer,
Defendant.
KEVIN MCNULTY, U.S.D.J.:

On April 16, 2019, the Court filed an Opinion and Order (DE 39) denying
the motion of prose Debtor-Appellants Andrea Newton and her husband, Mark
Newton, to prosecute this appeal without submitting critical items from the
record below—chiefly, the transcripts of the bankruptcy court’s oral rulings
that were being appealed.’ That Opinion and Order detailed a history of
delaying tactics and noncompliance with court orders. The Newtons requested
a 30-day extension of the already-expired deadline to file a motion for
reconsideration, which I granted until May 27, 2019. (DE 42)
On May 30, 2019, the court received a letter from Mark Newton and
Andrea Newton. (DE 44) The letter seeks reconsideration of my prior Opinion
and Order, and also serves “as a formal request that the above-captioned
appeals not be dismissed or the District Court otherwise takes any action
because Appellants are filing an Interlocutory appeal with the Clerk of the

“DE

“refers to the Docket Entry number in Civ. No. 17-8377.
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United States District Court of Appeals for the Third Circuit,” anticipated to be
filed by June 7, 2019.
This would not be the first interlocutory appeal relating to these issues.
On May 29, 2019, the Court of Appeals denied a previously filed appeal from
an order denying a stay of the bankruptcy court’s orders pending appeal. (DE
43) After reviewing the familiar factors governing an application for a stay, the
Court ruled as follows:
Appellants argued in District Court that the Bankruptcy
Court exceeded its authority by adding provisions to which they
did not agree to a September 19, 2017 order setting forth the

parties’ settlement, but they did not support their argument by
providing the transcript of the hearing at which the settlement terms
were put on the record. Appellants also argued that the Bankruptcy
Court exceeded its authority under Stern v. Marshall, 564 U.S. 462
(2011), but this case is inapposite as the Bankruptcy Court did not
adjudicate the merits of any state law claim. In addition,
Appellants argued that the Bankruptcy Court lifted the stay
without allowing them to be heard and without holding a hearing.
The record, however, reflects that the Bankruptcy Court
considered their filing after it issued the October 6, 2017 order
lifting the stay and concluded that it did not affect its ruling.
Appellants did not show that a hearing was required. Appellants
also challenged Bankruptcy Court orders issued November 14,

2017. Not only did they fail to provide the hearing transcript
containing the Court’s reasoning, but their motion failed to raise a
question as to those orders.
(DE 43 (emphasis added)).
The reasoning of the Court of Appeals, while delivered in the preliminary
context of a motion to stay, nevertheless bears on the merits of this motion and
the appropriateness of dismissal.

A. Reconsideration or further stay of proceedings
Local Rule 7.1(i) governs motions for reconsideration. Such a motion
must specifically identify “the matter or controlling decisions which the party
believes the Judge or Magistrate Judge has overlooked.” Id. Reconsideration is
granted sparingly, generally only in one of three situations: (1) when there has
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been an intervening change in the law; (2) when new evidence has become
available; or (3) when necessary to correct a clear error of law or to prevent
manifest injustice. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d
1194, 1218 (3d Cir. 1995); Carmichael v. Everson, 2004 WL 1587894 (D.N.J.
May 21, 2004). “A motion for reconsideration is improper when it is used ‘to
ask the Court to rethink what it had already thought through

—

rightly or

wrongly.”’ OHtani Say. & Loan Ass’n v. Fidelity & Deposit Co., 744 F. Supp.
1311, 1314 (D.N.J. 1990) (quoting Above the Belt v. Mel Bohannan Roofing, Inc.,
99 F.R.D. 99, 101 (E.D. Va. 1983)). Evidence or arguments that were available
at the time of the original decision will not support a motion for
reconsideration. Damiano v. Sony Music Entm’t, Inc., g75 F. Supp. 623, 636
(D.N.J. 1997); see also North River Ins. Co., 52 F.3d at 1218; Bapu Corp. v.
*4 (D.N.J. Dec. 23, 2010) (citing
Choice Hotels Int’l, Inc., 2010 WL 5418972, at
P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352
(D.N.J. 2001)).
Appellants’ arguments have not improved since they asserted them in
connection with a stay. They have not improved since they offered them in
connection with their motion to be relieved of the burden of filing the record on
appeal. At that time, they suggested that this Court should disregard the
Federal Rules of Bankruptcy and allow them to appeal without submitting the
very oral decisions from which they are appealing. The Newtons suggest,
without any supporting evidence, that they live on a meager fixed income
(although they apparently long ago ceased paying rent). They further believe
that the underlying decision is not required for the Court to decide their
appeal. I rejected those arguments. The Newton offer no new facts or law, or
matters overlooked by the court, to justify reconsideration. Reconsideration is
denied.
Given the history of this case, I cannot regard the associated request for
a stay pending the filing of an interlocutory appeal as anything but a further
delaying tactic. Filing an interlocutory appeal, with the likely jurisdictional

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hurdles, will likely eat up more time without advancing the case. Indeed, by
dismissing the Newtons appeals on this basis, I will position their contentions
for appellate review. The application to stay proceedings while the Newtons
formulate and file an interlocutory appeal is therefore denied.
B. Dismissal of Appeals

The Newtons have been given multiple opportunities, for nearly a year
and a half, to perfect their appeals. They are appealing from bankruptcy court
orders dating from September—November 2017.2 The orders at issue are: (1) a
September 19, 2017 Order that incorporated a settlement between Appellants
and their landlord, Clinton Palmer; (2) an October 6, 2017 Order that granted
relief from the automatic stay in bankruptcy to Palmer to proceed with eviction
proceedings against Appellants for their failure to comply with the September
19, 2017 Order; and (3) a November 14, 2017 Order denying Mr. Newton’s
application to intervene in Ms. Newton’s bankruptcy proceeding.
The September 19, 2017 Order incorporated the terms of a settlement
agreement that were placed on the record on August 30, 2017. The terms
included granting access to the apartment for an exterminator, followed by the
Newtons’ vacating the premises within 30 days. Among other challenges raised
to this Court, the Newtons have argued that the Bankruptcy Judge added
provisions to the order that were not discussed or agreed to by the Newtons
(who were represented by counsel at the time). (DE 13 at 4, 18)
The November 14, 2017 Order, denying Mr. Newton’s application to
intervene, was denied for reasons “set forth in the Court’s November 7, 2017
oral decision.”
The Newtons have not obtained or filed those transcripts, however.
Instead, they have daisy-chained requests for adjournments of deadline, some
made long after the deadlines had passed. These have been followed by

It is worth reviewing the incidents of delay and noncompliance surrounding
those orders, which were previews of things to come. The procedural history is
reviewed in my Opinion of March 19, 2019, at 3—4. (DE 28)
2

4

elaborate excuses for missing even the adjourned deadlines that they
themselves requested.
In my prior Opinion and Order I advised the Newtons of the
consequences of inaction:
As I previously advised the Newtons, Federal Rule of
Bankruptcy Procedure 8006 requires the party appealing a
decision of a bankruptcy court to file, within fourteen days of filing
the notice of appeal, a designation of items to be included in the
record on appeal and a statement of issues presented. “While the
Rule does not require that the ‘record on appeal’ include all
transcripts of the proceedings below, its provisions make clear that
those documents which include ‘findings of fact’ or ‘conclusions of
law’ are deemed part of the record, including transcripts.” In re
Harris, 464 F.3d 263, 269 (2d Cir. 2006). While I am mindful of the
Newton’s pro se status, the record is now substantially overdue. I
have given them multiple opportunities to submit the necessary
items. Those orders have met with excuses and commitments to
comply if the Court will grant an extension. Having been granted
extensions, the Newtons now seek to be exempted from complying
at all.
“Appellants have the duty to [designate and] provide the
[C]ourt with all documents, including transcripts, that are
necessary to conduct substantive review.” In re Olick, 466 BA?.
680, 695 (E.D. Pa. 2011); see In i-c WEB2B Payment Solutions, Inc.,
2013 WL 2383599, *12 (Bankr. D. Minn. May 30, 2013) (citing
cases). In addition, “[ilf the record designated by any party includes
a transcript of any proceeding or a part thereof, the party shall,
immediately after filing the designation, deliver to the reporter and
file with the clerk a written request for the transcript and make
satisfactory arrangements for payment of its cost.” In re Richardson
Indus. Contractors, 189 F. App’x 93, 95 n,2 (3d Cir. 2006).
(Op. at 4, DE 39).
From my prior Opinion, I reprint this brief summary of the Newtons’
repeated episodes non-compliance:
•

November-December 2017: the Newtons file their notices of appeal.

•

April 4, 2018: I enter an order to show cause why the appeals should not
be dismissed based on the Newtons’ failure to file the record in
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compliance with Fed. R. Bankr. 1?. 8003 and 8009. (DE 8). The
appellants do not respond adequately but cite medical problems. (DE 9).
-

April 26, 2018: I dismiss the appeals without prejudice to reinstatement
if the record is properly filed within 30 days. (DE 10).

•

On May 25, 2018, the Newtons write to the Court claiming that they were
not “served” with the April 26, 2018 order and did not learn about it until
May 3, or possibly May 25, 2018, and should be given more time to
comply. (DE 11).

•

On May 29, 2018, I enter an order granting a further extension until
June 19, 2018. (DE 12).

•

June 22, 2O18: A purported designation of the record on appeal is filed.
(DE 13). It does not include the transcripts of the August 30, 2017
hearing that forms the basis of the September 19, 2017 Order or the
November 7, 2017 transcript.

•

July 20, 2018: The Newtons write to the Court, claiming to have
overlooked various court-imposed obligations and orders, citing medical
problems and religious observances, and requesting reinstatement of
their appeals. (DE 14).

•

March 5, 2019: Despite deficiencies, the Court reinstates the Newtons’
appeals. A briefing schedule is entered requiring the Newtons to file their
merits briefing by April 4, 2019. (DE 21).

•

March 8, 2019: In state-court eviction proceedings, the Newtons
represent to the State judge that that my order of March 5, 2019
impliedly stayed the eviction because it was entered after they had moved
for reinstatement of their appeal “and other relief.” The Superior Court
adjourns the proceedings, seeking clarification as to whether a stay had
been granted. (DE 26

¶f

26, 27).

My prior opinion erroneously listed this date as July, not June, 22, although it
appears in the proper position in the chronology.
6

•

March 19, 2019: I enter an opinion and order stating in no uncertain
terms that no stay was in place and denying a pending motion for a
stay.4 (DE 28, 29). I particularly admonish the Newtons that, when this
Court eventually considers the merits of their appeal, I will consider
whether they have flied (1) the transcript of the settlement that was put
on the record (hearing August 30, 2017, order issued Sept. 19, 2017);
and (2) the transcript for the November 7, 2017 hearing denying Mr.
Newton’s application to intervene in Ms. Newton’s bankruptcy
proceeding. (DE 28 at 7 n.2). I further warn the Newtons that their
failure to file the transcripts may result in summary dismissal of the
appeals. (Id.).

•

March 19, 2019: My order denying the Newtons’ motion for a stay
pending appeal directs them to comply with my earlier order and file the
critical record items, including transcripts, by April 15, 2019.

•

March 21, 2019: The Newtons file additional papers in support of a stay,
but not the transcripts. (DE 34)

•

March 21, 2019: By supplemental opinion and order, I deny the stay
motion and reaffirm the order and opinion of March 19, 2019. (DE 36)

•

April 4, 2019: The Newtons fail to file a merits brief by the deadline
mandated by the Court’s March 5, 2018 Order.

•

April 9, 2019. The Newtons request that the Court consider their appeal
without the transcripts. The Newtons’ motion papers proffer that they
will file their merits brief after the Court resolves this motion. (DE 38-1
¶28).

•

April 15, 2019. Newtons fail to file the record pursuant to the Courtordered extended deadline.

(Op.

at 3—4, DE 39)

That stay motion was originally filed in December 2017 (DE 7) but became moot
when the appeal was terminated (DE 8). After the appeal was reinstated on March 5,
2019 (DE 21), I authorized the Newtons’ adversary, Palmer, to file a response (DE 24),
which he did (DE 26). (See procedural history in Opinion and Order (DE 36))
4

7

I supplement that history as follows:
•

April 16, 2019. Opinion and Order denying motion to proceed without
filing transcripts of oral decisions (DE 39)

•

May 16, 2019. Court grants 30-day extension of already expired
deadline to file motion for reconsideration. (DE 42)

•

May 29, 2019. Third Circuit issues its order denying a stay, quoted at p.
2, supra. (DE 43)

•

May 30, 2019. Court receives current motion for reconsideration. (DE 44)
At this point, no remedy short of dismissal is appropriate. Under Rule

8001(a) of the Federal Rules of Bankruptcy Procedure, the District Court is
empowered to dismiss an appeal for failure to prosecute or otherwise follow the
procedures set out in the Bankruptcy Rules. See In re Richardson Indus.
Contractors, Inc., 189 F. App’5c 93, 96 (3d Cir. 2006).
In assessing the propriety of such a dismissal, the Third Circuit requires
that the court be guided by the familiar Poulis factors:
(1) the extent of the party’s personal responsibility; (2) the
prejudice to the adversary caused by the failure to meet scheduling
orders and respond to discovery; (3) a history of dilatoriness; (4)
whether the conduct of the party or the attorney was willful or in
bad faith; (5) the effectiveness of sanctions other than dismissal,
which entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense.
Id. (quoting Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.
1984)); see also Emerson

ii.

Thiel CoIL, 296 F.3d 184, 190 (3d Cir. 2002). These

factors are balanced and weighed, and not every factor must weigh in favor of
dismissal. See Curtis T. Bedwell & Sons, Inc. v. Int’l Fidelity Ins. Co., 843 F.2d
683, 696 (3d Cir. 1988) (holding that not all Poulis factors must weigh in favor
of dismissal).
As extensively outlined above, the Newtons are responsible for delaying
this matter and have evinced a history of dilatoriness, despite the Court’s
indulgence in granting them their repeated requests for extensions of time
(Factors 1 and 3). See In re Buccolo, 308 F. App’x 574, 575 (3d Cir. 2009)
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(“Buccolo proceeded pro se, so the responsibility for any failure to prosecute
falls on him” and could not be blamed on counsel).
The Court has yet to receive a merits brief, even though the notice of
appeal was originally filed in 2017. See In re Tampa Chain Co., 835 F.2d 54, 56
(2d Cir. 1987) (affirming dismissal of bankruptcy appeal for failure to file brief
for seven months after due date); Nielsen u. Price, 17 F.3d 1276, 1277 (10th
Cir. 1994) (upholding dismissal of bankruptcy appeal for failure to follow
Bankruptcy Rules or timely file appeal brief where plaintiffs provided no
explanation or excuse for noncompliance).
Additionally, the Newtons have consistently failed to timely file their
requests for an extension of time, and instead, have filed such requests after
the expiration of Court-ordered deadlines. Cf In re Richardson Indus.
Contractors, Inc., 189 F. App3c at 98 (“where Appellant timely requested
extensions of time in which to file his brief, and in fact did file his brief prior to
issuance of the District Court’s order, we conclude that dismissal was not
appropriate.”).
At this late stage, the Newtons have made no suggestion that they intend
to obtain the transcripts at any time in the near future. The Court has given
them multiple opportunities to do so and has warned them of the possibility of
dismissal. Accordingly, I conclude that the first factor and third factor weigh in
favor of dismissal. See In re Buccolo, 308 Fed. App’3c at 574 (Appellant “did not
comply with the Bankruptcy Rules for filing a brief within 15 days of the
docketing of his appeal,
Court proceedings.

.

.

.

.

.

.or for providing for the transcript of the Bankruptcy

Either of these violations is grounds for dismissal under

Bankruptcy Rule 8001.).
I also conclude that the extent of the Newtons’ delay and failure to
comply with this Court’s orders evinces a purposeful intent to prolong this
matter that was willful, and not merely negligent or inadvertent. See Emerson,
296 F.3d at 191 (“Emerson’s conduct in failing to comply with the court’s
orders and in dragging the case out was willful and not merely negligent or

9

inadvertent.”); see also In re Aspen Healthcare, Inc., 265 B.R. 442, 447 (N.D.
Cal. 2001) (“In this case, it has been more than 200 days since Fisher filed his
Notice of Appeal and no reason has been given for the delay.

.

.

.

Courts have

found as short as a one month delay to be extreme and in bad faith.”). The
fourth factor thus weighs in favor of dismissal as well.
The Palmers, apparently small landlords, have suffered prejudice. The
Newtons, who continue to occupy the apartment rent-free, have continually
sought stays from the Bankruptcy Court, this Court, and the Third Circuit. The
Palmers initially filed a state-court action for eviction in March of 2027. Id. At
least one recent stay of the eviction action was obtained by what, but for the
Newtons’ pro se status, I would probably sanction as an abuse of my order.
(See pp. 6—7, supra (entries for March 8 & 19, 2019). See also Civ. No. 17-8378,
DE 11)). Accordingly, the second factor also weighs in favor of dismissal.
In terms of alternative sanctions, I believe there are no effective sanctions
aside from dismissal. Given the parties’ financial status, monetary sanctions
are not a real option. The Newtons are proceeding infonnapauperis. (Civ. No.
17-8378, DE 26); see Emerson, 296 F.3d at 191 (concluding there were “no
effective alternative sanctions to dismissal” because “an assessment of
attorney’s fees was not a serious consideration given Emerson’s financial
situation” and because “Emerson proceeded infonnapauperis.”). The fifth
factor also weighs in favor of dismissal.
Finally, the Court has outlined the merits of the Newtons’ appeal in
addressing their multiple applications for a stay. (DE 28, 36). As the Court
noted in its original opinion and its supplemental opinion, the merits of the
Newtons’ appeal are not strong, and the Court’s reasoning in those opinions is
adopted herein as its analysis of the merits of the Newtons’ claims. Therefore,
the sixth factor also weighs in favor of dismissal.
Weighing the six Poulis factors, I conclude that this matter should be
dismissed.

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CONCLUSION

For the foregoing reasons, the motion for reconsideration and for the
Court to refrain from taking any further action while the Newtons file another
interlocutory appeal will be denied. The appeals from the bankruptcy court’s
orders are dismissed. An appropriate order accompanies this opinion. The clerk
shall file this opinion and the accompanying order under all six of the captions
above.

Kevin McNulty
United States District Jud

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