Baron et al v. Sherman

Filing 8

Memorandum Opinion and Order: The court, pursuant to Rule 8001(a) of the Federal Rules of Bankruptcy Procedure, sua sponte dismisses with prejudice this appeal and denies as moot Appellant's Motion to Re-Designate Parties (Doc. 7 ). (Ordered by Judge Sam A Lindsay on 10/30/2013) (ctf)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JEFFREY BARON,
Appellant,
v.
DANIEL SHERMAN,
Appellee.

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Civil Action No. 3:13-CV-1294-L

MEMORANDUM OPINION AND ORDER
Before the court is Appellant’s Motion to Re-Designate Parties (Doc. 7), filed September 2,
2013. In his motion, Appellant requests that he be allowed to substitute Pronske & Patel, P.C. as the
appellee in this case. For the reasons herein discussed, the court sua sponte dismisses with
prejudice this appeal and denies as moot Appellant’s Motion to Re-Designate Parties (Doc. 7).
I.

Factual and Procedural Background
This bankruptcy appeal arises from a voluntary Chapter 11 bankruptcy case (Case No.

09-34784-sgj11) initiated on July 24, 2009, by Ondova Limited Company (“Ondova”), a company
owned by Appellant Jeffrey Baron (“Baron”). An order confirming the Third Amended Joint Plan
of Liquidation for Debtor’s Estate was entered by the bankruptcy court on November 21, 2012.
Baron brought this action to appeal an order entered by the bankruptcy court on November 30, 2012,
granting Pronske & Patel, P.C.’s (“Pronske & Patel”) Second Amended Application for Payment of
Fees as an Administrative Expense for a Substantial Contribution to the Estate, pursuant to 11 U.S.C.
§ 503(b)(4), in the amount of $294,033.87 for attorney’s fees and expenses to be paid by the
bankruptcy estate as an allowed administrative expense.
Memorandum Opinion and Order - Page 1

On December 14, 2012, Baron filed his Notice of Appeal of Order Granting Second
Amended Application of Pronske & Patel, P.C. for Payment of Fees as an Administrative Expense
for a Substantial Contribution to the Estate (“Notice of Appeal”). In the Notice of Appeal, Baron
designated trustee Daniel J. Sherman (“Trustee”) as the appellee. On April 10, 2013, Baron filed
his appellate brief in which he appears to suggest that the court is responsible for designating the
wrong party as the appellee. In a footnote, Baron states: “The case caption assigned by the Court
designates Daniel Sherman [as Appellee]. However, the interested party [Appellee] is Pronske &
Patel, P.C.” Appellant’s Br. 1 n.1. This statement, at a minimum, is disingenuous, as the clerk of
the court merely designated as parties to the appeal the persons identified in Baron’s Notice of
Appeal. Pursuant to Federal Rule of Bankruptcy Procedure 8004, the clerk similarly was only
required to serve the Notice of Appeal on the persons identified by Baron as parties in the Notice of
Appeal. Thus, any mistake in identifying and designating the proper party as the appellee was
Baron’s, not the clerk’s or the court’s.
Nine months after filing his Notice of Appeal, Baron filed a one-page motion to redesignate
Pronske & Patel as the proper Appellee in this appeal. To further confuse matters, Baron’s Motion
to Re-Designate Parties and appellate brief include both the Trustee and Peter S. Vogel (“Vogel”)*
as Appellees in the case caption; however, as noted, only the Trustee was designated as a party and
the appellee in the Notice of Appeal. No response to Baron’s Motion to Re-Designate Parties was
filed by either the Trustee or Vogel, presumably because they have “no dog in the fight.” No

*

Vogel was appointed by the district court as special master to mediate claims for unpaid legal fees in the
underlying civil litigation, which was stayed when Baron caused Ondova to file for bankruptcy. Netsphere, Inc. v.
Baron, 703 F.3d 296, 302-04 (5th Cir. 2012).

Memorandum Opinion and Order - Page 2

response to the motion was filed by Pronske & Patel because they were not designated by Baron as
parties to this appeal.
II.

Discussion
Rule 8001(a) of the Federal Rules of Bankruptcy Procedure requires a notice of appeal to:

“(1) conform substantially to the appropriate Official Form, (2) contain the names of all parties to
the judgment, order, or decree appealed from and the names, addresses and telephone numbers of
their respective attorneys, and (3) be accompanied by the prescribed fee.” Fed. R. Bankr. P. 8001(a).
While “[a]n appellant’s failure to take any step other than timely filing a notice of appeal does not
affect the validity of the appeal, it is grounds “for such action as the district court . . . deems
appropriate, which may include dismissal of the appeal.” Fed. R. Bankr. P. 8001(a) (emphasis
added). Based on the foregoing language in Rule 8001(a), the Fifth Circuit has held that a district
court has “authority to dismiss a bankruptcy appeal for failure to comply with procedural rules.” In
re McDonald, 327 F. App’x 491, 492 (5th Cir. 2009) (per curiam) (unpublished) (citing cases and
holding that district court acted within its discretion in dismissing sua sponte bankruptcy appeal for
failure to follow bankruptcy procedural rules applicable to briefing). It is not uncommon for a
bankruptcy appeal to be dismissed when the appellant fails to comply with procedural rules and
diligently prosecute the appeal. In re Braniff Airways, Inc., 774 F.2d 1303, 1305, 1305 n.6 (5th Cir.
1985) (“Bankruptcy appeals have frequently been dismissed for the appellant’s failure to comply
with the duty of diligent prosecution.”); Pyramid Mobile Homes, Inc. v. Speake, 531 F.2d 743,
745-46 (5th Cir. 1976) (per curiam) (same). Dismissal under Rule 8001(a) does not require a finding
by the court that the appellant acted in bad faith or was intentionally dilatory. In re McDonald, 327
F. App’x at 493. An appellant’s simple failure to comply with procedural rules is sufficient. Id.

Memorandum Opinion and Order - Page 3

As noted above, Baron filed his Notice of Appeal on December 14, 2012. The Notice of
Appeal fails to comply with Rule 8001(a)’s requirement that a notice of appeal “contain the names
of all parties to the judgment, order, or decree appealed from and the names, addresses and telephone
numbers of their respective attorneys” because it mistakenly designated the bankruptcy Trustee as
the appellee rather than Pronske & Patel. As a result, the Trustee, rather than Pronske & Patel, was
provided with notice of the appeal. In addition, no brief has been filed by the appellee in this case;
nor have any items been designated to be included in the record. Consequently, the appellate record
is incomplete, even though this bankruptcy appeal was initiated nine months ago.
Further, although Baron states on the first page of his motion that he “attempted to confer
with opposing counsel who have not responded to [his] request to re-designate” and certifies in his
certificate of conference that “I have served all parties who receive notification through the electronic
filing system,” there is no indication that Pronske & Patel received notice of the Motion to Redesignate Parties. Baron does not specify with whom he spoke regarding the motion, and, as Pronske
& Patel is not a party to this action, it would not have received service of the motion via the court’s
electronic filing system. Thus, while Baron states in a proposed order that there is “no objection”
to the motion. This is misleading, as he is essentially requesting the court to enter an ex parte order
without the benefit of a response by Pronske and Patel. Because Pronske & Patel is not a party to
this appeal, the court cannot order it to file a response to the motion.
Moreover, Baron provides no explanation whatsoever for the nine-month delay in seeking
to redesignate Pronske & Patel as the appellee in this action. Baron has known since at least April
10, 2013, when he filed his appellate brief, of the misdesignation. Baron nevertheless delayed
another five months before filing his one-page motion. The motion also fails to point the court to

Memorandum Opinion and Order - Page 4

any authority that the requested relief is appropriate under the Federal Rules of Bankruptcy
Procedure or relevant case law. The court therefore sua sponte determines that dismissal with
prejudice of this appeal is appropriate under Rule 8001(a) for Baron’s failure to comply with
applicable procedural rules and exercise diligence in prosecuting this appeal. See In re Nixon, 521
F. App’x 334 (5th Cir.) (unpublished), cert. denied, 2013 WL 3819453 (2013) (affirming district
court’s dismissal with prejudice of pro se bankruptcy appeal under Rule 8001(a)). The dismissal of
this appeal moots Appellant’s Motion to Re-Designate Parties. It will therefore be denied as moot.
III.

Conclusion
For the reasons explained, the court, pursuant to Rule 8001(a) of the Federal Rules of

Bankruptcy Procedure, sua sponte dismisses with prejudice this appeal and denies as moot
Appellant’s Motion to Re-Designate Parties (Doc. 7).
It is so ordered this 30th day of October, 2013.

_______________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order - Page 5