Clark v. DeRosa et al
Filing
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ORDER DISMISSING CASE. See the attached order, which affirms the bankruptcy court's judgment and closes this case. Ordered by Judge John Gleeson on 10/2/2014. (Aronoff, Peter)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FOR ONLINE PUBLICATION ONLY
GERARD L. CLARK,
Appellant,
- versus -
MEMORANDUM
AND ORDER
13-cv-05063
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
COUNTRYWIDE HOME LOANS, INC., and
BANK OF AMERICA, N.A.,
Appellees.
APPEARANCES:
GERARD L. CLARK
223-18 133 Avenue
Laurelton, NY 11413
Pro se appellant
BRYAN CAVE LLP
1290 Avenue of the Americas
New York, New York 10104
By:
Jessica Fischweicher
Attorneys for Appellees
JOHN GLEESON, United States District Judge:
Gerard L. Clark, proceeding pro se, appeals from a July 19, 2013 order in the
United States Bankruptcy Court for the Eastern District of New York (Elizabeth S. Stong, United
States Bankruptcy Judge) that dismissed an adversary proceeding, Adv. Pro. No. 13-01021-ess,
initiated in relation to Clark’s Chapter 13 bankruptcy petition, Case No. 12-46492-ess. The July
19, 2013 order is available on this court’s docket as Exhibit 1 to Clark’s Notice of Appeal, DE 1.
The Bankruptcy Court dismissed the underlying Chapter 13 case on the trustee’s motion on April
25, 2013, and I dismissed Clark’s appeal from that order as untimely. See September 10, 2013
Order, DE 19 in No. 13-cv-3451.
The Bankruptcy Court dismissed the adversary proceeding at issue here for two
independent reasons. First, it held that the proceeding should be dismissed because the record
showed that Clark had never properly served the defendants in that action (the appellees here).
See July 19 Order at 2-4. Second, it held that the proceeding should be dismissed as a matter of
discretion because the main bankruptcy case had been dismissed. See id. at 4-5.
Clark’s papers on appeal fail to address these two grounds for dismissal; instead,
Clark focuses on the merits of his bankruptcy case and adversary proceeding. However, an
independent review of the record has not revealed any error in the Bankruptcy Court’s holdings.
First, Clark has not demonstrated that the Bankruptcy Court clearly erred, see In
re Persaud, 496 B.R. 667, 670 (E.D.N.Y. 2013), when it found a lack of service, nor does the
record independently reveal any factual (or legal) errors in this respect.
Second, and more importantly, Clark has not demonstrated that the Bankruptcy
Court abused its discretion in deciding to dismiss the adversary proceeding after the main
bankruptcy proceeding had already been dismissed. See Pal Family Credit Co. v. Cnty. of
Albany, 425 B.R. 1, 7 (N.D.N.Y. 2010) (abuse of discretion standard). The Bankruptcy Court
was required to weigh “judicial economy, convenience to the parties, fairness and comity” before
deciding whether to dismiss the case. In re Porges, 44 F.3d 159, 162-63 (2d Cir. 1995). I
perceive no error in the Court’s consideration of those factors. In particular, very little had been
accomplished in the adversary proceeding before it was dismissed: perhaps because of the
ineffective service, the defendants had not made any substantial response to Clark’s contentions,
and Clark himself had moved for a default judgment. See July 19 Order at 2-3. Thus, this is not
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a case in which the bankruptcy court was already highly familiar with a case, and in which
dismissal would waste judicial resources. Furthermore, Clark has not shown that he was unable
to pursue the claims at issue in another court; considerations of fairness did not require the
bankruptcy court to retain jurisdiction. In sum, the Bankruptcy Court did not abuse its discretion
in dismissing the adversary proceeding.
The bankruptcy court’s judgment is therefore affirmed, and this case will be
closed. The appellant’s request at oral argument for additional discovery is denied.
So ordered.
John Gleeson, U.S.D.J.
Dated: October 2, 2014
Brooklyn, New York
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