In re: Peter Paul Mitrano

Filing 22

MEMORANDUM OPINION AND ORDER directing that this appeal is dismissed pursuant to section 158(a)(1); directing that in the event the 6/13/2011 order appealed from ultimately is found to constitute a final order under section 158(a)(1), the order appealed from is affirmed, and that this appeal be stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 5/23/2012. (cc: Bankruptcy Court; attys; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
IN RE: PETER PAUL MITRANO,
Debtor.
Bankruptcy No. 10-20476
PETER PAUL MITRANO,
Appellant,
vs.

Civil Action No. 2:11-0455

HELEN M. MORRIS, Trustee,
Appellee.
MEMORANDUM OPINION AND ORDER
Pending is an appeal of the June 13, 2011, order of the
United States Bankruptcy Court submitted November 18, 2011.

I.

The preliminary and background information below is
excerpted from the discussion found in United States v. Mitrano,
658 F.3d 117 (1st Cir. 2011).

The decision in Mitrano, which

concerns the appellant and debtor Peter Paul Mitrano, was cited
in his opening brief:
Mitrano married Virginia Kelly in the District of
Columbia in 1984. They had three children, born in
1985, 1986, and 1991. . . . [Following the couple’s
1992 divorce,] [t]he family lived together in the same
house, although Mitrano and Kelly did not reconcile as
husband and wife.

In 2000, Kelly moved out of the house and filed an
action in New Hampshire seeking sole custody of the
children. . . . Kelly obtained temporary custody of the
children in early 2001. In 2002, the New Hampshire
court issued a final order awarding Kelly sole custody
of the children and requiring Mitrano to pay $1,406 per
week in child support, plus $300 per week toward past
medical expenses. Mitrano has paid no child support
since issuance of the final order.
Mitrano attempted to appeal the child support
order to the New Hampshire Supreme Court, but the court
declined to hear the appeal. He sought and was denied
review by the U.S. Supreme Court. Mitrano then filed
suits and appeals in four states (New Hampshire,
Vermont, Virginia, and Maryland) and in two federal
courts (the District of New Hampshire and the Eastern
District of Virginia). In each case he argued that the
child support order was invalid because the New
Hampshire court lacked subject matter jurisdiction. He
lost every case and appeal.
On August 20, 2008, Mitrano was indicted for
willfully failing to pay child support in violation of
18 U.S.C. § 228(a)(3). He was tried before a jury in
the District of New Hampshire. At trial, Kelly
testified that Mitrano worked as a patent lawyer and
was a licensed engineer, that he owned two properties
in Virginia (one of which generated rental income), and
that he owned two Porsche automobiles and another
vehicle. . . .
The government . . . introduced filings from
Mitrano's 2008 bankruptcy proceeding in the Eastern
District of Virginia.FN2 [Footnote 2 states as follows:
“The bankruptcy petition was ultimately dismissed, in
part because it had been filed in bad faith.”]. The
bankruptcy filings valued one of Mitrano's unencumbered
Virginia properties at $550,000 and a second Virginia
property at $900,000, encumbered only by a secured
claim of $156,426.87. Records introduced through a
representative of the New Hampshire Department of
Health and Human Services Office of Child Support
showed that Mitrano owed child support in excess of
$400,000 for the years 2005 through 2008.
He was convicted, sentenced to serve 24 months in
prison, and ordered to pay restitution in the full

2

amount of past due child support (including interest).
. . .
Mitrano, 658 F.3d at 119-20 (footnote omitted).1
After having been incarcerated pursuant to the
aforementioned criminal sentence in other areas of the United
States, Mr. Mitrano was transferred to FCI Beckley on February 9,
2010.

On May 10, 2010, he filed in this district his voluntary

petition pursuant to Chapter 13.

On July 21, 2010, Trustee Helen

M. Morris (“Trustee”) objected to venue.

She appears to have

asserted grounds for both dismissal under 28 U.S.C. § 1408 and
for transfer under 28 U.S.C. § 14122:
The debtor asserts his domicile is Virginia, as noted
on his petition for “County of Residence or Principal
Place of Business.” Two of the debtor’s three scheduled
parcels of real estate are located in Virginia. The
third piece is in New Hampshire. The debtor is simply
in West Virginia as a result of a prison sentence. As
the answer to Question 15 of the Statement of Financial
Affairs asserts, the debtor lived at 4912 Oakcrest
Drive, Fairfax, Va., prior to his incarceration
beginning with New Hampshire from October 22, 2009.
According to the Answer to Question 15, the debtor has
been in federal prisons in Oklahoma, Georgia, New
[Hampshire] and now West Virginia.
. . . .
It appears that other than his prison account of
approximately $75.00, all of the debtor’s assets are
located in Virginia or New Hampshire.

1

Mr. Mitrano asserts that the court “should not rely upon
the facts stated in” the First Circuit’s decision. (Reply at
11). Inasmuch as Mr. Mitrano cited the decision and the quoted
information is referenced purely for contextual purposes, the
court deems mention of it appropriate.
2

Mr. Mitrano asserts that the Trustee did not raise a
section 1412 challenge and that the bankruptcy court lacked a
record upon which to support transfer under that provision. As
will become apparent, neither contention is well taken.
3

There is no showing that venue is proper because
of the convenience of the parties or in the interests
of justice. Venue of a Chapter 13 case may be changed
“in the interest of justice or for the convenience of
the parties.” 28 U.S.C. § 1412. In the instant case,
there does not appear to [be] either factor which would
allow the case to remain in the Southern District of
West Virginia. The debtor requested to appear by phone
for the 341 hearing and could appear by phone in any
jurisdiction. The debtor’s plan does not meet the
standards of confirmation. The difference between the
value of the assets and the statutory exemptions would
indicate that a liquidation of assets needs to be
accomplished; and since the real estate, the major
asset, is in Virginia and New Hampshire, creditors are
better served by the case being transferred to Virginia
and converted to Chapter 7.
WHEREFORE, the Trustee prays that the Court will
dismiss the petition for improper venue or transfer the
case to the proper bankruptcy court in Virginia.
(Obj. at 1-2).3
Also on July 21, 2010, the Trustee moved to dismiss or
convert the case as a result of Mr. Mitrano’s failure to file his
tax returns, stating pertinently as follows:

3

Section 1408(a)(1) provides that a Chapter 13 proceeding
may be commenced in the district
in which the domicile, residence . . . or principal
assets in the United States, of the person . . . that
is the subject of such case have been located for the
one hundred and eighty days immediately preceding such
commencement, or for a longer portion of such
one-hundred-and-eighty-day period than the domicile,
residence, or principal place of business, in the
United States, or principal assets in the United
States, of such person were located in any other
district . . . .
Id. The court need not review the bankruptcy court’s
determination respecting satisfaction of the requirements of
section 1408(a)(1). It is noteworthy, however, that Mr. Mitrano
was located in West Virginia for exactly 90 days immediately
prior to commencement of his Chapter 13 proceeding.
4

This day comes the Trustee and moves the Court to
dismiss the above-referenced case pursuant to 11 U.S.C.
1307(e), for the reason that the Debtor has failed to
file the tax returns required under 11 U.S.C. . . .
[1308(a)].
The debtor testified at the 341 hearing on July
21, 2010, that he has had not filed the 2009 federal
tax return and has not filed the 2008 and 2009 State of
Virginia tax returns.
(Mot. at 1).
On August 3, 2010, Mr. Mitrano responded to the venue
objection, in pertinent part, as follows:
Mitrano has been in Federal prison and his exact
location has been as directed by the United States of
America by and through its Department of Justice and
its Federal Bureau of Prisons. Mitrano has been in
federal prison since October 22, 2009.
. . . .
Mitrano states under oath that Mitrano was brought by
the United States of America to the Federal
Correctional Institution in Beaver, West Virginia on
February 9, 2010.
(Resp. at 1-2, 4).

Mr. Mitrano additionally cited case law, not

involving section 1408, suggesting that a prisoner resides in the
district of incarceration.
Also on August 3, 2010, Mr. Mitrano responded to the
motion to dismiss, noting that he had “very limited” access to
his records and information while incarcerated.

(Oppos. at 1).

He additionally asserted, inter alia, that enforcement of the tax
return requirement would deny him access to the courts in
violation of the Constitution.

He offered to provide the returns

if released, to allow the case to be stayed pending his release,
5

or to seek an additional 120 days in which to gather the missing
returns.
On August 4, 2010, the bankruptcy court held a hearing
on the venue objection and the motion to dismiss.

On August 13,

2010, the bankruptcy court entered its “ORDER DISMISSING CASE,”
which provides pertinently as follows:
At the hearing, the United States Trustee appeared
in support of the motion to dismiss and informed the
Court of the Debtor's previous bankruptcy case which
was filed in the Bankruptcy Court in the Eastern
District of Virginia, designated Case No. 08-12890-SSM.
This case, which dealt with debts that are
substantially similar to the ones scheduled in this
Chapter 13 proceeding, was ultimately dismissed after a
finding that the Debtor's filing lacked good faith
under 11 U.S.C. § 1307(c). The Court finds that the
filing of this proceeding was an attempt to circumvent
the rulings of the Court in the Eastern District of
Virginia. For that reason, in addition to the fact that
the Debtor failed to file his tax returns as required
by 11 U.S.C. § 1308(a) the Court finds that the Chapter
13 Trustee's motion to dismiss is appropriate.
Accordingly, this bankruptcy case is hereby DISMISSED.
Because the Court has dismissed this case, the other
matters before the Court are moot and the Court
declines to rule on their merits.
(Ord. at 1-2).
On August 30, 2010, Mr. Mitrano moved for
reconsideration of the August 13, 2010, order.

He cited

authorities requiring the bankruptcy court to first address the
Trustee’s venue objections prior to adjudicating the motion to
dismiss.

He further asserted a due process deprivation inasmuch

as he was not permitted to attend the August 4, 2010, hearing

6

based upon what the bankruptcy court deemed to be an untimely
request to direct his custodian to transport him.4
On September 2, 2010, the bankruptcy court scheduled an
October 27, 2010, hearing respecting the reconsideration request.
On September 29, 2010, however, Mr. Mitrano appealed the
bankruptcy court’s August 13, 2010, dismissal order.

Mr. Mitrano

recognized that the appeal might be unseasonable: “This appeal
may be premature; there is presently pending a motion for
reconsideration.”

(Not. at 1).

The October 27, 2010, hearing was rescheduled to
November 3, 2010, with Mr. Mitrano given leave to participate by
telephone from his place of incarceration.

On November 4, 2010,

the bankruptcy court reinstated the Chapter 13 proceeding on the
condition that Mr. Mitrano comply with the Code-based obligations
imposed upon him.

(Ord. at 1 (“[T]his case shall remain open

only so long as the Debtor demonstrates the willingness and
ability to execute the responsibilities of a Ch. 13 Debtor.”).
On May 18, 2011, Mr. Mitrano alerted the bankruptcy
court that, while he remained incarcerated, his new address was
in Washington, D.C.

On May 25, 2011, following unrelated

4

On July 21, 2010, the bankruptcy court scheduled a hearing
on the venue objection and the motion to dismiss. On August 3,
2010, the day prior to the scheduled hearing, Mr. Mitrano wrote
the bankruptcy court requesting either an order directing his
custodian to transport him for the hearing or permitting him to
appear by telephone by making arrangements with a named
individual at his place of incarceration.
7

developments in the Chapter 13 proceeding, the bankruptcy court
held another hearing respecting the Trustee’s objection to venue.
Mr. Mitrano participated by telephone from his place of
incarceration.

He did not address the grounds for transfer

supplied by the Trustee.

He focused instead on demonstrating

that he had resided in West Virginia for the greater portion of
the 180 days immediately preceding commencement of the Chapter 13
proceeding.
As is reflected in the electronically recorded hearing,
it appears the bankruptcy court found significant the following
undisputed facts: (1) Mr. Mitrano’s property is located in the
Eastern District of Virginia, (2) he was no longer physically
present in West Virginia at the time of the hearing, (3) he
expected his personal residence following his release from
custody to be within the Eastern District of Virginia, which is
where he has traditionally resided, (4) transfer would accomplish
cost savings for both Mr. Mitrano and his creditors, and (5) the
interests of justice were best served by transfer of the case as
opposed to dismissal.

The bankruptcy court announced at the

conclusion of the hearing its intention to transfer the case.
The June 13, 2011, order appealed from was then entered,
transferring the bankruptcy case to the Eastern District of
Virginia.

The order also disposed of other matters.5

5

The order also deemed the September 29, 2010, appeal
noticed by Mr. Mitrano to be moot based upon the November 4,
2010, reinstatement of the Chapter 13 proceeding. While Mr.
Mitrano appeals this determination, the bankruptcy court did not
err. As Mr. Mitrano suggested contemporaneous with filing the
first notice of appeal, it was premature.
8

On June 17, 2011, the Clerk of the Bankruptcy Court
sent what appears to be the entirety of a copy of the record
electronically, and via regular mail, to her counterpart in the
Eastern District of Virginia.

On June 21, 2011, the Clerk of the

Bankruptcy Court in the Eastern District of Virginia acknowledged
receipt of the transferred case file and assigned the Eastern
District of Virginia case number of 11-14531 to the transferred
Chapter 13 proceeding.
On June 20, 2011, Mr. Mitrano sent from his place of
incarceration a “Motion to Stay Transfer Pending Outcome of
Appeal Before the United States District Court for the Southern
District of West Virginia (‘motion to stay transfer’).”
1).

(Mot. at

The motion to stay transfer was apparently received, and

filed, by the Clerk of the Bankruptcy Court in this district on
June 22, 2011.

In the motion to stay transfer, Mr. Mitrano noted

that he had not received a transfer order from the bankruptcy
court as of the date of his motion.

A copy of that order,

entered June 13, 2011, appears to have been returned to sender
based upon the recipient not being found at the address used by
the Clerk of the Bankruptcy Court in this district.
Having apparently later received a resent copy, on June
21, 2011, Mr. Mitrano noticed his appeal of the June 13, 2011,
transfer order.

On June 30, 2011, the bankruptcy court denied

the motion to stay transfer.

On July 1 and 11, 2011, Mr. Mitrano

moved to amend his June 21, 2011, notice of appeal.
9

The July 1,

2011, motion sought an amendment designed solely as a protective
device to assure the appeal was timely filed.

The July 11, 2011,

amendment sought to add as grounds for appeal the June 30, 2011,
bankruptcy court order denying the June 20, 2011, motion to stay
transfer of the case.6
On July 14, 2011, Mr. Mitrano was released from
custody.

His current mailing address is in Fairfax, Virginia,

which falls within the geographic boundaries of the Eastern
District of Virginia.

II.

Mr. Mitrano’s three notices of appeal state that they
are filed “under Title 28 U.S.C. § 158(a)(1) . . . .”
e.g., (Not. of App. at 1 (Jun. 23, 2011)).

(See,

Title 28 U.S.C. § 158

generally governs appeals from the bankruptcy court.

It provides

pertinently as follows under subdivision (a):
(a) The district courts of the United States shall have
jurisdiction to hear appeals
(1) from final judgments, orders, and
decrees;
. . . ; and
(3) with leave of the court, from other
interlocutory orders and decrees;

6

Inasmuch as the case file had been physically transferred
by the time Mr. Mitrano sought a stay, the court discerns no
error in denial of the motion to stay transfer.
10

and, with leave of the court, from interlocutory orders
and decrees, of bankruptcy judges entered in cases and
proceedings referred to the bankruptcy judges under
section 157 of this title. An appeal under this
subsection shall be taken only to the district court
for the judicial district in which the bankruptcy judge
is serving.
28 U.S.C. § 158(a) (emphasis added).
The June 13, 2011, order from which Mr. Mitrano appeals
is a venue-transfer decision.

Were the venue transfer order

entered in the usual civil case, it would be deemed interlocutory
in nature and unappealable pending entry of a final judgment,
order, or decree.

See, e.g., TechnoSteel, LLC v. Beers Const.

Co., 271 F.3d 151, 154 (4th Cir. 2001)(“Immediate challenges to a
§ 1404(a) transfer are limited to the filing of a petition for
writ of mandamus with the transferor circuit court prior to the
physical transfer of the file or, once the file is transferred,
to the filing of a motion with the transferee district court to
retransfer the case.”); Brock v. Entre Computer Ctrs., Inc., 933
F.2d 1253, 1257 (4th Cir. 1991); In re Ralston Purina Co., 726
F.2d 1002, 1005 (4th Cir. 1984).

At least one United States

Court of Appeals has held likewise under section 158 with respect
to venue decisions by bankruptcy courts.

See, e.g., In re

Dalton, 733 F.2d 710, 714-15 (10th Cir. 1984) (noting it is
“well-established . . . that an order transferring venue of an
action, even if the transfer is to a district in another circuit,
is an interlocutory order and unappealable, except by
certification . . . .”); see also 1 Howard J. Steinberg,
Bankruptcy Litigation § 2.22 (2011)(“An order entered by a
11

bankruptcy court granting or denying a motion to transfer venue
of a case or proceeding is interlocutory and cannot be appealed
absent consent from the district court or, where applicable, the
bankruptcy appellate panel.”).7
Our court of appeals has indicated some flexibility in
the finality doctrine when a bankruptcy appeal is under
consideration.

That approach traces its origins to A.H. Robins

Co., Inc. v. Piccinin, 788 F.2d 994 (4th Cir. 1986).

In

Piccinin, the lower court fixed the venue for thousands of
personal injury claims then-pending against the debtor across the
United States in a Virginia bankruptcy court.

The court of

appeals elaborated on why that order was final for purposes of
appellate jurisdiction:
The special or unique reason for this relaxed rule of
appealability in bankruptcy is that
[b]ankruptcy cases frequently involve
protracted proceedings with many parties
participating. To avoid the waste of time and
resources that might result from reviewing
discrete portions of the action only after a
plan of reorganization is approved, courts
have permitted appellate review of orders
that in other contexts might be considered
interlocutory.
This particular appeal illustrates well the
justification for the relaxed rule of appealability in
bankruptcy cases. Should appeal be denied and trials
proceed in the district court of the myriad of claims
7

Mr. Mitrano has not sought leave, as required, under the
other jurisdiction-giving subdivisions of section 158. Neither
does he assert that review might be accomplished under either the
collateral order doctrine or by mandamus. The court thus does
not address the applicability of those alternate potential bases
for appellate jurisdiction.
12

involved with the possibility of reversal on appeal
from a final decision in such proceedings, months and
months of litigation, carried on at great expense to
all concerned might be voided and the reorganization
derailed, with consequent extensive delays both in
reorganization and in resolution of the claims of the
tort plaintiffs themselves. Weighty considerations of
fairness and efficient judicial administration,
therefore, mandate appealability in this case. We
accordingly dismiss Robins' challenge to the
appealability of the order in question.
Id. at 1009 (citation omitted); see also McDow v. Dudley, 662
F.3d 284, 289-90 (4th Cir. 2011) (applying Piccinin and stating
as follows: “We . . . hold that a bankruptcy court's order
denying a § 707(b) motion to dismiss a Chapter 7 case as abusive
is a final order within the meaning of 28 U.S.C. § 158(a). . . .
If the denial of a § 707(b) motion to dismiss cannot be appealed
immediately to the district court, the Chapter 7 proceedings
would have to be completed before it could be determined whether
the proceedings were abusive in the first place.”); In re
Computer Learning Centers, Inc.

407 F.3d 656, 662 (4th Cir.

2005)(addressing the finality of an interim order of compensation
under Piccinin and stating as follows: “That the bankruptcy court
remains free to act in this manner -- to increase or decrease
amounts previously awarded on an interim and provisional basis -only underscores the nonfinal nature of its August 9, 2002
order.”); In re Urban Broadcasting Corp., 401 F.3d 236, 247 (4th
Cir. 2005) (involving appeal of orders denying reconsideration,
as well as a motion to extend an objection deadline, to postpone
a hearing, and to authorize a partial distribution, with court of
appeals noting as follows under Piccinin: “[T]o be final, an
13

order must ‘conclusively determine[] a separable dispute over a
creditor's claim or priority,” In re Saco Local Dev. Corp., 711
F.2d 441, 445-46 (1st Cir. 1983); see also A.H. Robins Co., 788
F.2d at 1009 (approvingly citing then-Judge Breyer's
characterization of ‘finality’ in Saco).

White does not even

argue that the procedural orders at issue qualified under this
test. There was no ‘separable dispute,’ nor were any of White's
rights ‘conclusively determined.’”); In re Looney, 823 F.2d 788,
790-91 (4th Cir. 1987)(involving delayed action by bankruptcy
court on stay-relief motion and court of appeals noting as
follows under Piccinin: “Even though the standard for finality of
bankruptcy court orders is relaxed from that of non-bankruptcy
district court orders . . . , the order in this case is not a
final order because it does not resolve the litigation, decide
the merits, settle liability, establish damages, or determine the
rights of even one of the parties to the Looney's bankruptcy
case. . . . The district court below explicitly viewed the
bankruptcy court's order as interlocutory, and the order lacks
those characteristics that this court identified in Piccinin as
substitutes in the bankruptcy context for traditional indicia of
finality.”).
In light of the foregoing authorities, the venue
transfer order is interlocutory and thus not appealable.

It

might be posited that the exercise of appellate jurisdiction is
consistent with the resource-saving thesis underlying the
principle espoused in Piccinin that
14

“‘finality’ . . . is to be

given not an absolute and inflexible construction in bankruptcy
cases . . . [but rather] a ‘functional’ and ‘practical’
application . . . .”

Id. at 1009.

Our court of appeals has

concluded just the opposite, however, in the civil venue transfer
setting.

See In re Carefirst of Maryland, Inc., 305 F.3d 253,

256 (4th Cir. 2002)(stating, “[T]here is good reason for not
allowing immediate appeals of transfer orders --

“it will be

highly unfortunate if the result of an attempted procedural
improvement is to subject parties to two law suits: first,
prolonged litigation to determine the place where a case is to be
tried; and, second, the merits of the alleged cause of action
itself.”)(quoting Ellicott Mach. Corp. v. Modern Welding Co., 502
F.2d 178, 181 (4th Cir. 1974) (internal quotation marks
omitted)).

The more functional and practical approach here is not
to bend section 158(a)(1) beyond its breaking point, but rather
to permit Mr. Mitrano to instead raise any venue challenge he may
have in the transferee bankruptcy court.

That court may then

decide to return the case here or deny transfer.

In the event

transfer is denied, Mr. Mitrano may pursue the matter at the
conclusion of the main case or, alternatively, seek early
appellate review of the interlocutory order as contemplated by
the procedures found in section 158 -- procedures which he has
not availed himself of presently.
Alternatively, if the bankruptcy court’s venue transfer
decision is deemed to constitute a final order, it withstands
15

scrutiny on the merits.

The applicable factors governing a

section 1412 transfer are as follows:
1. The proximity of creditors of every kind to the
court; 2. The proximity of the debtor to the court;
3. The proximity of the witnesses necessary to the
administration of the estate; 4. The location of the
assets; and 5. The economical and efficient
administration of the estate.
The most important of these factors is the fifth
factor, the economic and efficient administration of
the estate. This factor is an amalgamation of the four
preceding factors.
Dunlap v. Friedman's, Inc., 331 B.R. 674, 680 (S.D. W. Va. 2005)
(internal characters omitted).
One can readily discern from the bankruptcy court’s
bench ruling the good reasons resulting in its ultimate
conclusion that the economic and efficient administration of the
estate would best be served by transfer.

III.

Based upon the foregoing discussion, it is ORDERED as
follows:
1.

That this appeal be, and it hereby is, dismissed
pursuant to section 158(a)(1);

2.

That, in the event the June 13, 2011, order appealed
from ultimately is found to constitute a final order
under section 158(a)(1), the order appealed from be,
and it hereby is, affirmed; and
16

3.

That this appeal be, and it hereby is, stricken from
the docket.
The Clerk is directed to forward copies of this written

opinion and order to the Clerk of the Bankruptcy Court, counsel
of record, and any unrepresented parties.
ENTER:

May 23, 2012

John T. Copenhaver, Jr.
United States District Judge

17