Willie H. Brown

I N THE UNITED S TATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
I N RE 	: CHAPTER 13
:
WILLIE H. BROWN 	:
DEBTOR ( S ) 	: BANKRUPTCY NO . 08-13595 SR
S UPPLEMENTAL WRITTEN O PINION
SUR O RDER OF NOVEMBER 19, 2008
PURSUANT TO LOCAL BANKRUPTCY RULE 8001-1(b)
BY : STEPHEN RASLAVICH , UNITED STATES BANKRUPTCY J UDGE .
Introduction
This opinion is filed pursuant to Local Bankruptcy Rule 8001-1(b) for the purpose of
amplifying the Court’s oral bench ruling and Order of December 17, 2008.
Background
This is a Chapter 13 bankruptcy case commenced on June 2, 2008. The Debtor, Willie
H. Brown, is represented by David A. Scholl, Esq., a bankruptcy practitioner and former Judge
of this Court.
On June 13, 2008, Counsel filed a Motion pursuant to 11 U.S.C. § 522(f) seeking to
avoid a judicial lien held by creditors Jay and Jenna Jutkovsky on the grounds that it impaired an
exemption in realty which the Debtor had claimed. An evidentiary hearing with respect to that
contested matter was held on October 1, 2008. At the conclusion of the hearing the Court issued
an oral Bench ruling denying the Motion.
On October 13, 2008, a Motion to Reconsider the Order of October 1st was filed and a
hearing thereon was set for November 19, 2008 at 10:00 a.m. An Answer in opposition to the
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request for reconsideration was timely filed by counsel for the Jutkovskys, Jason C. Berger, Esq.
The Reconsideration Motion was called at 10:02 a.m., at which time only Mr. Berger and
Mr. Brown were present. Mr. Scholl was absent and, in response to its inquiry, the Court was
advised by the parties and courtroom staff that Mr. Scholl was in an adjacent courtroom where
he was engaged in an evidentiary hearing on behalf of another client before Judge Diane
Sigmund. No information as to an expected arrival time for Mr. Scholl was communicated to the
Court.
At that juncture, Mr. Berger asked to be excused to attend a matter before Judge Jean
Fitzsimon. Court was thereupon recessed (10:20 a.m.) and was reconvened at 10:44 a.m. At the
request of the undersigned further attempts, consisting of dispatching an emissary to Mr. Scholl
and the sending an instamessage to Judge Sigmund’s audio system recorder, were made, all in an
effort to ascertain Mr. Scholl’s status. No reply of any kind whatsoever was received.
Faced with this conundrum, the Court, at 10:49 a.m., advised Mr. Berger and Mr. Brown
that it was going to dismiss the Motion for Reconsideration, without prejudice. The Court
emphasized that the dismissal was without prejudice and, should the Motion be renewed, it
would be heard - subject to the condition that the fair cost of the wasted time of the Respondents’
counsel be paid. Court was thereupon adjourned.
At 11:51 a.m. Mr. Scholl appeared before the Court alone and explained that he had been
unfortunately detained in a hearing before Judge Sigmund that took longer than he had expected
it to take. A colloquy followed in which the Court advised Mr. Scholl of what had transpired
earlier that morning. Mr. Scholl stated that 1) he had informed the undersigned’s courtroom
deputy of the matter he had before Judge Sigmund, 2) that he always felt it was regretful when
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people have to wait, but 3) he didn’t know what he should have done under the circumstances.
On November 21, 2008, a Motion for Reconsideration of the Court’s Order of November
19, 2008, (and, once again, the Order of October 1, 2008) was filed. A timely response in
opposition to this Motion was filed on behalf of the Jutkovskys and the matter was set for
hearing on December 10, 2008. That hearing was continued to December 17, 2008 by
agreement of the parties.
A rather spirited colloquy took place at the hearing on December 17, 2008. The essence
the Court gleaned from the remarks of Debtor’s Counsel was that, in his opinion, the incident on
November 19, 2008, was not his fault and that, indeed, he was blameless. He emphasized that
the hearing scheduled before Judge Sigmund on the morning of November 19 th had been
“specially listed” by her, and that he had no choice but to appear and remain there until it
concluded. He reemphasized that he had thought the hearing would be short, that he was sorry
his opposing counsel had to sit idle, but that matters that day were totally within the control of
Judge Sigmund.
For the reasons which follow the Court rejected this explanation and, following counsel’s
refusal to comply with the Court’s previous condition, the Motion for Reconsideration of the
Order of November 19, 2008 was denied.
Discussion
When considering whether to dismiss a case for failure to prosecute, courts generally
consider the following factors set forth in Poulis v. State Farm and Casualty Company, 747 F.2d
863, 868 (3d Cir. 1984):
(1) the extent of the party's personal responsibility; (2) the
prejudice to the adversary caused by the failure to meet scheduling
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orders and respond to discovery; (3) a history of dilatoriness; (4)
whether the conduct of the party or the attorney was willful or in
bad faith; (5) the effectiveness of sanctions other than dismissal,
which entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense.
A balancing of these factors militated in favor of dismissal of the subject motion. The Court
herein will review all of the factors, albeit not in the order recited above.
I. Prejudice
There was obviously minimal prejudice to the Respondents in this situation beyond the
time wasted by their counsel in waiting for the hearing that didn’t go forward. (The Court notes
parenthetically, however, that this prejudice, such as it was, might have been exacerbated had the
Court not dismissed the Motion when it did, since Mr. Scholl did not appear for approximately
one hour thereafter.)
II. The Meritoriousness of the Claim or Defense
This was unquestionably Counsel’s weakest argument. In Mr. Scholl’s view he was a
powerless victim of circumstance. Yet that was clearly not the case.
Counsel acknowledged that at least a couple of days before the fact he was aware that he
had a “specially listed” matter before Judge Sigmund that would definitely go forward on the
morning of November 19th
. (N.T. 12-17-08 at 8) He was, of course, also aware that opposition
papers to the Motion pending before this Court had been filed and that that matter, too, was
likely to go forward. The conflict, in other words, was readily apparent, indeed, it was
practically inevitable.
Counsel has contended that the events of November 19 th were the fault of the Court
system, in general, or Judge Sigmund in particular. Such is not the case. While the matter which
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1 Ultimately, Debtor’s counsel thanked the Court for this advice and conceded that he could
have, and perhaps should have, done this. (N.T. 12-17-08 at 20).
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counsel had pending before Judge Sigmund may have been “specially listed” by her, the matter
pending before this Court was not ”specially listed” by this Court. Indeed, it was not “listed” by
this Court at all. Counsel himself “self-scheduled” the hearing on his Motion for
Reconsideration pursuant to the procedures set forth in Local Bankruptcy Rule 5070-1.
With a conflict looming, counsel took no steps to secure a continuance, despite his
acknowledgment that a continuance would have been readily granted had one been sought.
(N.T. 12-17-08 at 8-9)
More significantly, counsel vastly exaggerated his predicament on the morning of
November 19 th
. As the Court explained during the colloquy on December 17th
, faced with the
situation counsel could have, and should have, requested a brief recess from Judge Sigmund for
the purpose of addressing himself to the scheduling conflict he had created.1. Had Counsel made
such a request and been refused there would have been little else to talk about. But Counsel
made no such request and elected instead to keep his opponent, the Court and his own client
completely in the dark as to his status. Such conduct is unprofessional and indefensible.
III. History of Dilatoriness
Debtor’s Counsel has a lengthy history of self-scheduling multiple matters at the same
time. Most conflicts resolve themselves consensually and the Court, in general, has exhibited
what it considers to be great patience with Counsel’s habits. Here, however, there was no
consensus, and hence there was an obvious problem. It is, in the opinion of the Court, simply
unsatisfactory for counsel to maintain that he was at liberty to ignore the situation and not even
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attempt communication with his adversary or the Court concerning his circumstances.
IV. Willfulness/Bad Faith
The Court acknowledged that it did not consider Debtor’s Counsel to have acted in bad
faith. The Court does, however, consider Counsel’s conduct to have been willful, in that
counsel’s conduct was conscious, voluntary and deliberate. Once again, counsel had ample
opportunity beforehand to deal with an impending conflict of his own creation. He likewise had
opportunity in the midst of things to act in a courteous, professional manner to deal with the
circumstances. He took no action, ignoring the concerns of others, and electing to place his
priorities ahead of those of anyone else.
V. The Effectiveness of Sanctions other than Dismissal
Arguably the dispute at hand is of minor consequence, at least from an economic
perspective. It was readily apparent from the colloquy at the hearing on December 17 th
,
however, that the instant issue is a matter of significant principle insofar as Debtor’s Counsel is
concerned. The Court respects this. The Court is of the firm opinion, however, that counsel was
in the wrong. 	Respondents’ Counsel presented an “invoice” for his “wasted” time on the
morning of November 19th in the amount of $420, being two hours at $210 per hour. The Court
had estimated the time as being perhaps a couple of hours. By the conclusion of the hearing on
December 17th
, the Court opined that the time in question might be as little as one hour and,
having examined the transcripts, even that might be on the high side. Given that the filing fee
for an appeal of this Court’s Order of December 17th was $255 there is clearly for Debtor’s
counsel something at stake here much larger than the amount in controversy.
In the opinion of the Court this matter, fundamentally, has to do with the efficient
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administration of the business of the Court. Implicit, if not express, in Debtor’s Counsel’s
remarks is his belief that, where necessary, the rules of Court and common courtesy should yield
to the manner in which he has elected to conduct himself. Counsel, moreover, was clearly angry
and indignant because that result did not obtain. In the course of his colloquy with this Court on
December 17th
, for instance, Counsel proceeded, inter alia, to 1) accuse the Court of personal
animus against him; 2) accuse the Court of selectively singling him out for sanction; 3) raise his
voice to an intemperate level (for which he apologized); 4) publicly disparage Judge Sigmund (“I
can’t tell when Judge Sigmund’s going to end the hearing. When she ended the hearing, she
went into a monologue for about a half an hour.”); 5) dismiss the impact of his conduct on his
opponents. (“I think that’s one of the things you have to live with as a lawyer.”); and 6) advise
the Court that he was retiring and “getting out of it,” because he had had enough of dealing with
the Bankruptcy Court over the past seven or eight “unpleasant” years. (N.T. 12-17-08 at 12, 9,
16, 7, 10 and 12 respectively)
Unanticipated delays may well be an occasional, unfortunate byproduct of the modern
day practice of law. This does not, however, legitimize one behaving in a fashion which
contributes to the problem rather than its solution. This is where Debtor’s Counsel misses the
mark. 	The Court took great pains during its colloquy with counsel to assure him, and it
reiterates here, that there neither was nor is anything “personal” at issue here. Moreover, as
discussed, the “sanction” to be imposed as a condition to reinstatement of the original Motion for
Reconsideration was, by any measure, a fair and very modest one. Counsel essentially made
clear, however, that no penalty, however modest, was acceptable to him based on his belief that
he had done absolutely nothing wrong. As a consequence, the Court was constrained to
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conclude that no alternative sanction short of dismissing the Motion would operate to adequately
deal with the situation.
VI. The Extent of the Party’s Personal Responsibility
There is an anomaly to this factor. Obviously Mr. Brown bore no personal responsibility
for Mr. Scholl’s behavior. Other things being equal, therefore, this factor would weigh against
dismissal of the Motion for Reconsideration. Toward the conclusion of proceedings on
December 17th
, however, Mr. Scholl asked for a brief recess to discuss the situation with his
client, stating that “I’d certainly hate to hurt him.” When Court reconvened Mr. Scholl implied
that he may have paid the sanction and that he did not want to create problems for Mr. Brown
since he was present on November 19th
. Ultimately, though, Mr. Scholl informed the Court that
he would not pay the sanction because Mr. Brown did not agree that he should; indeed, Mr.
Brown apparently felt strongly that he should not pay it. (N.T. 12-17-08 at 20)
This rather odd turn of events removed Mr. Brown from the status of an innocent
bystander to the affair. 	It is no less inappropriate for Mr. Scholl to delegate to Mr. Brown the
final word on how the business of the Court should be run, than it is for this Court to delegate
that matter to Mr. Scholl. By his actions, Mr. Brown implicated himself in the heart of the
matter and, as a consequence, this factor likewise weighed in favor of dismissal.
Summary
All of the Poulis factors weighed in favor of the Order dismissing the subject Motion for
failure to prosecute, some, of course, to a greater degree than others. In a certain respect this
matter, as noted, is liken to the proverbial “tempest in a teapot.” At bottom, however, is the
larger principle of whether an attorney can flout the rules of procedure, and conventions of
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common professional courtesy, without consequence or reprimand of any kind, based on
counsel’s assessment of the propriety of his conduct. The Court believes not. The Court,
needless to say, stands ready to address the merits of the underlying Motion for Reconsideration
of its Order of October 1, 2008, subject to compliance with the very reasonable condition
precedent it believes it has specified.
By the Court:
_________________________________
Stephen Raslavich
Chief, United States Bankruptcy Judge
Dated: 	December 30, 2008
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I N THE UNITED S TATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
I N RE 	: CHAPTER 13
:
WILLIE H. BROWN 	:
DEBTOR ( S ) 	: BANKRUPTCY NO . 08-13595 SR
ORDER
AND NOW, in accordance with Local Bankruptcy Rule 8001-1(b), it is hereby:
O RDERED , that the Court’s Order of November 19, 2008, is amplified by the attached
Supplemental Written Opinion.
By the Court:
Stephen Raslavich
Dated: December 30, 2008 	Chief, United States Bankruptcy Judge
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Interested Parties:
George Conway, Esquire
Office Of The U.S. Trustee
833 Chestnut Street
Suite 500
Philadelphia PA 19106
Counsel for Debtor
David A. Scholl, Esquire
The Regional Bankruptcy Center
Law Office of David A. Scholl
#6 St. Albans Ave
Newtown Square, PA 19073
Counsel for Respondents
Jason C. Berger, Esquire
WEIR & PARTNERS LLP
The Widener Bldg.
1339 Chestnut Street
Ste 500
Philadelphia, PA 19107
Polly Langdon, Esquire
Office of Frederick J. Reigle, Esquire
Chapter 13 Trustee
2901 St. Lawrence Ave
P.O. Box 4010
Reading PA 19606
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