Native Wholesale Supply Company v. The State of Oklahoma

Filing 21

ORDER affirming June 29, 2015 Order of the bankruptcy court. The Court does not address the motion for sanctions filed by Oklahoma at this time. The Clerk shall terminate the appeal. Issued by Hon. Richard J. Arcara on November 19, 2015. (WJG) -CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

NATIVE WHOLESALE SUPPLY COMPANY,
Appellant,
DECISION AND ORDER
15-CV-665-A

v.
STATE OF OKLAHOMA,
Appellee,

The appellant, Native American Wholesale Company, Inc., a Chapter 11
debtor, appeals a June 29, 2015 Order of the bankruptcy court, and seeks to overturn
the bankruptcy court’s interpretation of the term “Final Order” in the debtor-appellant’s
confirmed plan of reorganization (the “plan”). The appellee, State of Oklahoma, has
moved to dismiss the appeal due to: (1) procedural default because appellant has
not perfected the appeal as required by Fed. R. Bank. P. 8009 and 8018; and (2)
because the bankruptcy court ruling under appeal is moot. Appellee State of
Oklahoma has also moved for imposition of monetary sanctions on grounds the
appeal was frivolous and was filed to delay payments due to appellee under the plan.
In response to appellee State of Oklahoma’s motions to dismiss, appellant
Native American Wholesale Supply Company concedes it has not perfected the
appeal, and that “dismissal of the appeal[] is within the discretion of the Court.” Dkt.
No. 12, p. 5, ¶ 14. Instead of seeking leave of the Court to perfect the appeal,
however, appellant requests that the appeal be considered by ad hoc summary

procedure on the ground that the appeal turns on interpretation of the plain text of the
term “Final Order” defined in the plan. Id. at ¶¶ 14, 16-17. Appellant suggests it
does not need oral argument of the appeal, and that a memorandum of law would be
“superfluous” because the appeal raises no issues “requiring citation to law.” Id. at
¶¶ 14, 17; see Fed. R. Bank. P. 8018(e). Appellant has not directly addressed
whether the appeal is moot. Appellant opposes imposition of sanctions on it.
DISCUSSION
The Court assumes the parties’ familiarity with the record and the issues before
the Court. As a preliminary matter, the Court notes that appellant Native American
Wholesale Supply conceded before the bankruptcy court that the June 10, 2014
judgment of the Oklahoma Supreme Court was not subject to a further challenge of
any sort, except potential bankruptcy law challenges. See Dkt. No. 6-9 pp. 17-19.
Yet non-bankruptcy grounds were the only grounds relied upon by appellant in its
Final Order Objection. See Dkt. No. 4-14, ¶ 5, p. 2. Appellant sought to preserve
other unspecified, potential objections, see Dkt. No. 4-14, ¶ 6, p. 2, but, by its plain
text, the Final Order Objections did not preserve a pending objection filed within the
time allowed to file an objection. See Dkt. No. 4-5, ¶ 1.39 Final Order, p. 9; Id. at ¶
9.5, pp. 38-39 (15-day objection window). Accordingly, the Court finds the sole
pending objection to the June 10, 2014 Judgment of the Oklahoma Supreme Court
raised in appellant’s Final Order Objection was rendered moot by appellant’s
concession to the bankruptcy court.
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All other rulings in the June 29, 2015 Order of the bankruptcy court, including
the rulings on the belatedly-raised issues under Bankruptcy Code §§ 105 and 502(j),
see Dkt. No. 6-8, are affirmed for the reasons stated by the Bankruptcy Judge. See
Dkt No. 4-2, pp. 3-4; Dkt. No. 6-9, pp. 17-32. The arguments of appellant merit no
further discussion, and the Court finds oral argument unnecessary. Fed. R. Bank. P.
8019.
CONCLUSION
For the foregoing reasons, the June 10, 2014 Judgment of the Oklahoma
Supreme Court was properly found to be a Final Order by the bankruptcy court, and
the Court affirms the bankruptcy court’s June 29, 2015 Order. At this time, the Court
does not reach State of Oklahoma’s motion for sanctions pursuant Fed. R. Bank. P.
8020, 28 U.S.C. § 1927, and the Court’s inherent powers. Dkt. No. 8.
IT IS SO ORDERED.

Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: November 19, 2015

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