Gibbs et al v. Goddard Riverside Community Center et al

Filing 7

MEMORANDUM (Order to follow as separate docket entry) Signed by Honorable Malachy E Mannion on 2/12/24. (dj)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
Geddes S. Gibbs and Alfred
McZeal, Jr.,
Appellants,

Case No. 3:23-cv-1394

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(JUDGE MANNION)

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v.
Goddard Riverside Community
Center, Roderick L. Jones,
Merrill T. Dobson, Andrea Cain
Lawson, Christopher Auguste,
Nancy Rochford, Marcia
Bystryn, and Howard Stein,
Appellees.

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MEMORANDUM
Presently before the court is the pro se bankruptcy appeal of Debtor
Gebbes S. Gibbs and Alfred McZeal, Jr. regarding the bankruptcy court’s
dismissal of their adversary complaint. Appellants filed a notice of appeal
with this court on August 22, 2023. (Doc. 1.) However, to date they have not
filed an appellant brief in violation of the Federal Rules of Bankruptcy
Procedure. Accordingly, and for the reasons stated below, the court will sua
sponte dismiss this appeal for failure to prosecute.
I.

Background

Appellant Gibbs and his spouse, Natalie Fashina Langley Gibbs, filed
a Chapter 13 Voluntary Petition on February 27, 2023, in the United States

Bankruptcy Court for the Middle District of Pennsylvania. On March 27, 2023,
Mr. Gibbs and Mr. McZeal initiated an adversary proceeding in the
bankruptcy court against Appellee Creditors. Appellants filed a 110-page
complaint alleging claims under the United States Constitution, Sections
1981, 1983, 1985, and the 1986, the Racketeer Influence and Corrupt
Organizations Act, the Fair Debt Collections Practices Act, and state law. No
where in the complaint does Mr. McZeal explain why he is involved in this
matter, how he is connected to Mr. Gibbs or his bankruptcy, or how his rights
were violated by the conduct alleged in the adversary complaint.1
Mr. McZeal has conceded on the record that this adversary proceeding
should have been filed in district court at the onset and was only brought in
bankruptcy court because Mr. Gibbs could not afford the district court’s filing
fee. Still after Appellees moved to Dismiss Appellants’ adversary complaint
in the bankruptcy court, Appellants filed a motion to withdraw the reference
and move the whole proceeding to district court. Appellants first attempted
The bankruptcy court has also expressed concerns that Mr. McZeal,
who is not an attorney, is engaged in the unauthorized practice law by acting
as Mr. Gibbs representative in this matter. The court shares this concern and
wants to remind Mr. McZeal that the unauthorized practice of law is a criminal
offense in the Commonwealth of Pennsylvania. See 42 Pa. Cons. Stat. Ann.
§ 2524. Mr. McZeal cannot represent Mr. Gibbs or anyone other than himself
in any aspect of Mr. Gibbs’ bankruptcy or any other proceeding before this
court.
1

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to file their motion in bankruptcy court, where they also requested to stay
their adversary proceeding while that motion was pending. But since a
motion to withdraw the reference must be filed in district court, the
bankruptcy court dismissed Appellants’ motion, as well as denied their
request for a stay finding they failed to carry their burden of showing that they
were likely to succeed in having the reference withdrawn or that the stay
otherwise served the interest of the parties or court.
On July 5, 2023, Appellants refiled their motion to withdraw the
reference. For reasons that are not clear to the court, Appellants filed their
motion to withdraw the reference again on July 17, 2023. Appellees filed a
response on July 19, 2023, and Appellants filed an amended motion on July
21, 2023. Appellants filed another amended motion on July 27, 2023.
Appellees did not file any subsequent response to Appellants’ motion but
continued to pursue their motion to dismiss the adversary proceeding in
bankruptcy court. 2 In their motion to withdraw the reference Appellants
requested the district court stay the proceedings in bankruptcy court

Appellees also filed a motion to sanction Mr. McZeal in the bankruptcy
court arguing that Mr. McZeal’s only purpose for inserting himself in this
bankruptcy is to harass and exploit Appellees, a tactic that has previously
led to sanctions against him in California, Texas, and Louisiana, and landed
him on a vexatious litigants list.
2

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regarding Appellee’s motion to dismiss. The court did not grant that request,
nor was it required to.
Appellants did not respond the Appellees’ motion to dismiss. Instead,
they filed an objection and ex parte motion to strike Appellees’ motions to
dismiss as well as their motion for sanctions against Mr. McZeal. On August
10, 2023, the bankruptcy court denied Appellants’ motion to strike and
granted Appellees’ Motion to Dismiss finding that Mr. Gibbs failed to allege
adequate facts for any of his claims and Mr. McZeal lacked standing to bring
any claim. Furthermore, neither Mr. Gibbs nor Mr. McZeal filed any response
to Appellees’ motion to dismiss. On August 22, 2023, Appellants filed a
notice of appeal challenging the bankruptcy ruling on Appellees’ motion to
dismiss with the district court. On August 23, 2023, the court docketed a letter
with its procedures including the requirement that Appellant’s file their
opening brief within 14 days per the Federal Rules of Bankruptcy Procedure.
(Doc. 2). To date Appellants have not filed any briefs with the District Court.
II.

Standard of Review

This court has appellate jurisdiction over this appeal of the bankruptcy
court’s order pursuant to 28 U.S.C. §158(a)(1) (The district court has
“jurisdiction to hear appeals from final judgments, orders, and decrees” of a
bankruptcy court). See In re Michael, 699 F.3d 305, 308 n.2 (3d Cir. 2012)
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(“[A] district court sits as an appellate court to review a bankruptcy court.”).
When a district court sits as an appellate court over a final order of a
bankruptcy court, it reviews the bankruptcy court’s legal determinations de
novo, its findings of fact for clear error, and its exercise of discretion for abuse
of discretion. In re Trans World Airlines, Inc., 145 F.3d 124, 131 (3d Cir.
1998).
III.

Discussion

Federal Rule of Bankruptcy Procedure Rule 8009(a) establishes that
“[u]nless the district court or the bankruptcy appellant panel by local rule or
by order excuses the filing of briefs or specifies different time limits: (1) The
appellant shall serve and file a brief within 14 days after entry of the appeal
on the docket pursuant to Rule 8007.” As stated in the court’s letter neither
the District Court nor the local rules excuse the filing of briefs or specify
different time limits here.
“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.” In re
New Century TRS Holdings Inc., 526 B.R. 562, 565 (D. Del. 2014), aff'd sub
nom. In re New Century TRS Holdings, Inc., 619 F. App'x 46 (3d Cir. 2015)
citing In re Richardson Indus. Contractors, Inc., 189 Fed.Appx. 93, 96 (3d
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Cir.2006) (unpublished). Furthermore, under the court’s inherent power over
case management, it may dismiss an action with prejudice sua sponte for a
plaintiff or in this case appellant’s failure to prosecute “so as to achieve the
orderly and expeditious disposition of cases.” Spain v. Gallegos, 26 F.3d
439, 454 (3d Cir.1994). The decision to dismiss for lack of prosecution lies
within the district court’s discretion. See Emerson v. Thiel College, 296 F.3d
184, 190 (3d Cir.2002) (dismissal for failure to prosecute is reviewed for
abuse of discretion). This discretion is informed by the six-factor test
articulated in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d
Cir.1984); See also In re New Century, 526 B.R. at 566 (Using Poulis factors
in deciding to dismiss bankruptcy appeal for failure to prosecute.)
The Poulis factors are: (1) the extent of the party’s personal
responsibility; (2) the prejudice to the opponent; (3) any history of
dilatoriness; (4) whether the conduct of the party or the attorney was willful
or in bad faith; (5) whether effective alternative sanctions are available; and
(6) the meritoriousness of the claim or the defense. Gallegos, 26 F.3d at 455
(citing Poulis, 747 F.2d at 868). “No single Poulis factor is dispositive” and
“not all of the Poulis factors need be satisfied in order to dismiss a complaint.”
Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). Still the court will
address each factor in turn.
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A. Appellants’ Personal Responsibility
Here the Appellants have filed their appeal pro se and therefore, are
personally responsible for their actions, or lack thereof. See Emerson v. Theil
Coll., 296 F.3d 184, 190 (3d Cir. 2002). Accordingly, the court finds that this
factor weighs in favor of dismissal.
B. Prejudice to the Opponent
By failing to file any brief the Appellants have failed to inform Appellees
of the specific issues they intend to rise on appeal and in turn have deprived
Appellees of the ability to respond to this appeal. Accordingly, the court finds
that this factor weighs in favor of dismissal.
C. History of Dilatoriness
Appellants filed their notice of appeal on August 22, 2023, and nearly
six months later have still not filed any briefs. Appellants have not once
sought an extension or offered the court any explanation for this delay.
Furthermore, Appellants never filed an opposition brief in the bankruptcy
court to the motion to dismiss that led to the order they now challenge on
appeal. Accordingly, the court finds that this factor weighs in favor of
dismissal.

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D. Whether Conduct of the Appellants was willful or in bad faith
Given the court’s notice to Appellants on August 23, 2023, that they
needed to file their opening brief within 14 days of filing their notice of appeal
and Appellants lack of any request for extension, the court must conclude
that at best their failure to file an opening brief was willful and at worst in bad
faith. The history of vexatious litigation presented to the bankruptcy court
about Mr. McZeal makes the court inclined to believe that it is the latter.
Accordingly, the court finds that this factor weighs in favor of dismissal.
E. Effectiveness of Other Sanctions
Based on the bankruptcy court transcript Mr. McZeal has already been
the subject of motion to sanction in the bankruptcy court. Yet Appellants have
continued to flaunt the Federal Rules of Bankruptcy Procedure. Furthermore,
appellants are pro se so traditional attorney disciplinary sanctions are
inapplicable to them. Accordingly, the court finds that this factor weighs in
favor of dismissal.
F. Meritoriousness of Claim or Defense
In considering whether a claim or defense appears to be meritorious,
“[the court does not] use summary judgment standards. A claim, or defense,
will be deemed meritorious when the allegations of the pleadings, if
established at trial, would support recovery by plaintiff or would constitute a
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complete defense.” Poulis, 747 F.2d at 869–70. Here Appellants challenge
the bankruptcy court’s order granting Appellee’s motion to dismiss their
adversary complaint but again provide no arguments to this court in support
of that challenge. Likewise, without any arguments from the Appellants the
Appellees have not been able to raise any defenses. Nonetheless based on
its own review of the record, the court sees no error by the bankruptcy court.
It is evident from the record that Mr. Gibbs failed to allege adequate facts in
support of any of the 19 claims in his adversary complaint and Mr. McZeal
lacks standing to bring any claim. Accordingly, the court finds that this factor
weighs in favor of dismissal.
On balance, the Poulis factors all weigh in favor of dismissing
Appellant’s appeal for failure to prosecute. Thus, the court will DISMISS the
present appeal with prejudice. An appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: February 12, 2024
23-1394-01

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