Opinion
CIVIL ACTION NO. 3:10cv885-MHT (WO).
August 30, 2011
OPINION AND ORDER
Debtor-appellant Jesse Lewis Freeman appealed a decision by the Bankruptcy Court of the Middle District of Alabama lifting an automatic stay of a state-court action brought by appellee Gladys F. King. This district court affirmed the bankruptcy court's decision. In re Freeman, 2011 WL 3627370 (M.D. Ala. Aug. 17, 2011). This case is currently before the court on King's motion for sanctions made pursuant to Federal Rule of Bankruptcy Procedure 8020. For the reasons that follow, the court will grant that motion in part and deny it in part.
I.
Federal Rule of Bankruptcy Procedure 8020 authorizes this court, after determining "that an appeal from an order, judgment, or decree of a bankruptcy judge is frivolous" and ensuring that the appellant has notice and a reasonable opportunity to respond, to "award just damages and single or double costs to the appellee." Fed.R.Bankr.P. 8020. This authority parallels that of the courts of appeals under Federal Rule of Appellate Procedure 38. In re Porto, 645 F.3d 1294, 1306-07 (11th Cir. 2011).
II.
Freeman is one of 83 named defendants in a statecourt action brought by King to quiet title to a parcel of real property in which Freeman claims an interest. Throughout the pendency of that action, he has repeatedly used the federal courts in order to interrupt and delay the state-court proceedings. In 2008, Freeman twice removed the case to federal court, only to have it promptly remanded for lack of subject-matter jurisdiction. See King v. Parcel of Land, No. 3:08-cv-302 (Doc. No. 4) (Watkins, C.J.); King v. Parcel of Land, No. 3:08-cv-72 (Doc. No. 6) (Watkins, C.J.). After the second removal, he was warned that further attempts to use removal in order to dely the state-court proceedings might result in sanctions.
Following that warning, Freeman filed a Chapter 13 bankruptcy petition in the Bankruptcy Court for the Middle District of Alabama. On June 16, 2009, The bankruptcy court confirmed Freeman's Chapter 13 plan and an automatic stay was placed on all pending judicial proceedings against his property, including King's action to quiet title. See 11 U.S.C. § 362(a). King retained counsel and moved for relief from the stay. Freeman, though represented by counsel at the time, did not respond. The bankruptcy court lifted the stay and later denied Freeman's motion to reconsider.
Acting pro se, and against the advice of counsel, Freeman appealed to this court. His counsel promptly moved to withdraw. In that motion, counsel explained that he had spoken with Freeman several times regarding this appeal; that both Freeman's motion for reconsideration in the bankruptcy court and his appeal to this court were "against the advice" that he had given; and that "irreconcilable differences" about how best to proceed with the case prevented him from continuing his representation. Mot. to Withdraw 3-4 (Doc. No. 6).
This court granted counsel's motion to withdraw. Freeman, who apparently has some paralegal training, has continued to press his appeal pro se. On August 17, 2011, this court affirmed the bankruptcy court's decision to lift the stay. In re Freeman, 2011 WL 3627370 (M.D. Ala. Aug. 17, 2011). Only King's separate motion for sanctions remains undecided.
III.
There can be no doubt that Freeman's appeal is frivolous. The vast majority of the briefing that he has provided this court addresses the merits of the statecourt proceeding, rather than the bankruptcy court's decision to lift the automatic stay. That focus is unsurprising since the bankruptcy court's decision was not merely correct and well-reasoned, but the only possible resolution based on the facts of this case. Unable to question that decision, Freeman resorts to irrelevant attacks on the state-court action.
When Freeman does focus on the bankruptcy court's decision, his arguments are patently without merit. First, Freeman argues that the bankruptcy court violated his due-process rights by failing to call him on his personal telephone so that he could participate in a July 13, 2010, conference call. But Freeman readily admits to receiving notice prior to the call. That notice directed him to dial in to the call with a number that the court provided. There is no conceivable way that his failure to follow those instructions amounts to a due-process violation. Second, Freeman generally attacks the bankruptcy court's decision to lift the stay. However, his vague and cursory references to alleged error fail to identify anything that the bankruptcy court actually got wrong; nor could it, since every single factor that the bankruptcy court was obligated to consider before lifting the stay, see In re Marvin Johnson's Auto Serv., Inc., 192 B.R. 1008, 1014 (Bankr. N.D. Ala. 1996) (Cohen, B.J.), confirms that court's decision.
If the only issue was the strength of Freeman's appeal, then this court would be somewhat reluctant to impose sanctions. More often than not, a pro se litigant's frivolous arguments are the result of ignorance rather than bad faith, and it could be reasonably viewed as unfair to welcome those unfamiliar with the law into the courtroom and then impose sanctions whenever inexperience leads them astray. Sanctions are therefore often considered inappropriate in cases where a pro se litigant files a frivolous appeal. Woods v. IRS, 3 F.3d 403 (11th Cir. 1993). However, this is not such a case.
After thoroughly examining the record and closely observing the litigation's path through state, federal, and bankruptcy courts, only one conclusion is possible: Freeman's motivation is to delay, for as long as he can, the state-court action to quiet title. To put it simply, Freeman has acted in bad faith and has done so in the face of contrary advice from counsel and warnings from this court. Under these circumstances, sanctions are appropriate so as to deter the further wasting of judicial resources and to ensure that the state-court action can continue without additional unwarranted delays. See United States v. Morse, 532 F.3d 1130, 1132-33 (11th Cir. 2008) (sanctioning pro se litigant for raising frivolous arguments after he had been warned that they were frivolous); Pollard v. Comm'r, 816 F.2d 603, 604-05 (11th Cir. 1987) (per curiam) (sanctioning pro se appellant for raising issues that had "long been settled" after a warning that they were frivolous).
The court does not take the imposition of sanctions lightly, but it cannot ignore Freeman's bad-faith efforts to delay the state-court proceedings or condone his inability to provide any legal or factual basis to support this appeal. Indeed, when confronted with King's allegations and given an opportunity to respond, Freeman did not even attempt to provide a non-frivolous justification for this appeal. Instead, he baselessly accused King of perjury before the bankruptcy court and continued his irrelevant attacks on the state-court proceedings. The court therefore easily concludes that, despite Freeman's pro se status, sanctions are appropriate.
IV.
Because Freeman's actions caused King to expend personal unnecessarily resources defending this appeal, the court finds the appropriate sanction to be the actual, reasonable amount of attorney fees plus court costs. However, King has not provided sufficient information with which to calculate that amount. She will be therefore directed to file a supplement to her motion for sanctions setting forth her costs, including a detailed time record of her attorney and appropriate affidavits establishing the reasonable hourly rate for the handling this appeal.King's request for additional sanctions tied to the estimated value of the property at issue in the state-law action would produce an unnecessary windfall for King and will be therefore denied.
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For the foregoing reasons, it is ORDERED as follows:
(1) Appellee Gladys F. King's motion for sanctions (doc. no. 5) is granted to the extent that (a), by September 6, 2011, appellee King shall file a supplemental statement setting forth her expenses, including the time record of her attorney along with the appropriate affidavits establishing the reasonable hourly rates for his services; and (b), by September 20, 2011, appellant Jesse Lewis Freeman may file a response.
(2) Appellee King's motion for sanctions (doc. no. 5) is denied in all other respects.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).