IN RE: ERIC S. GILBERT JOHN M. MCDONNELL, as Chapter 7 Trustee v. ERIC S. GILBERT On Appeal from the United States District Court for the District of…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 23-2944
IN RE: ERIC S. GILBERT
JOHN M. MCDONNELL, as Chapter 7 Trustee,
Appellant
v.
ERIC S. GILBERT
On Appeal from the United States District Court
for the District of New Jersey
(District Court Nos. 3-22-cv-05274; 22-cv-05910 and
3-22-cv-05911)
District Judge: Honorable Georgette Castner
Submitted under Third Circuit L.A.R. 34.1 (a)
on June 25, 2024
Before: JORDAN, McKEE, and AMBRO, Circuit Judges
(Opinion Filed: October 24, 2024)

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Richard J. Corbi
Law Offices of Richard J. Corbi
1501 Broadway
12 th Floor
New York, NY 10036
Brian T. Crowley, Esq.
McDonnell Crowley
115 Maple Avenue
Suite 201
Red Bank, NJ 07701
Counsel for Appellant
Andrea Dobin
McManimon Scotland & Baumann
427 Riverview Plaza
Trenton, NJ 08611
Michele M. Dudas
McManimon Scotland & Baumann
75 Livingston Avenue
Suite 201
Roseland, NJ 07068
Counsel for Appellee

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OPINION OF THE COURT
AMBRO, Circuit Judge
When Eric Gilbert filed for Chapter 7 bankruptcy, he
listed his interest, approaching $1.7 million, in retirement
accounts set up under two defined benefit plans (for ease of
reference, we refer to the accounts and the plans jointly as the
“Retirement Plans” or “Plans”). The question before us is
whether Gilbert’s creditors can collect from them because their
operations allegedly flouted federal law. The Bankruptcy
Court, in a well-reasoned opinion, concluded they were beyond
the creditors’ reach. On appeal, the District Court agreed in an
equally well-crafted opinion. We affirm.
I. Background
To understand this dispute, a brief primer on the laws of
retirement benefits and bankruptcy is helpful. We start with
the former. At issue here is the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. Speaking
generally, it governs many employer retirement plans. ERISA,
29 U.S.C. §§ 1002–03; Ronald J. Cooke, 1 ERISA Practice &
Procedure § 2:1 to 9 (2024). At a high level, the statute
protects participants by “establish[ing] standards of conduct,
responsibility, and obligation” for those who offer and
administer retirement plans, ERISA § 1001(b), in an effort to
“protect participants[.]” Edmonson v. Lincoln Nat’l Life Ins.
Co., 725 F.3d 406, 413 (3d Cir. 2013) (quoting Pilot Life Ins.
Co. v. Dedeaux, 481 U.S. 41, 44 (1987)). But ERISA is not

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the sole means by which the federal Government regulates
retirement benefits. The Internal Revenue Code (“IRC”), 26
U.S.C. § 1 et seq., also includes substantial rules for retirement
plans; the reward for plans that comply—or, as tax
professionals say, qualify—is “favorable tax treatment.”
Cooke, supra, at § 1:3.
Also at issue in this case is the Bankruptcy Code, 11
U.S.C. § 101 et seq. It offers “a simple bargain: [a] debtor can
win a discharge of its debts” in return for “plac[ing] virtually
all its assets on the table for its creditors.” Harrington v.
Purdue Pharma L.P., 603 U.S. —, 144 S. Ct. 2071, 2077–78
(2024). In Chapter 7 cases like Gilbert’s, the Code does so by
creating a bankruptcy estate composed of almost of all the
debtor’s assets at “the commencement of a case[,]” Bankruptcy
Code § 541(a), liquidating them, id. § 704(a), and distributing
the proceeds to creditors. Id. § 726. In return, the Bankruptcy
Court “shall” grant the debtor a discharge from its pre-
bankruptcy debts, id. § 727(a), which prohibits collection
efforts on those obligations. Id. § 524.
Certain types of assets are categorically excluded from
the bankruptcy estate. Excluded assets are not liquidated to
pay pre-bankruptcy debts in a Chapter 7 case. A debtor may
retain them even as he is discharged from his pre-bankruptcy
obligations. This case centers on one exclusion: § 541(c)(2),
which protects a debtor’s “beneficial interest . . . in a trust”1
that is subject to a “restriction on . . . transfer . . . enforceable
under applicable nonbankruptcy law[,]” also known as an anti-
alienation provision. Rephrased, this means that bankruptcy
1 No one disputes the Plans here, governed by ERISA, are
trusts. See Patterson v. Shumate, 504 U.S. 753, 760 (1992).

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respects rules protecting trust assets from a beneficiary’s
creditors. If a creditor cannot access the trust outside
bankruptcy, the assets remain out of its reach in bankruptcy.
Gilbert filed his Chapter 7 bankruptcy in 2021. He
disclosed the Retirement Plans and claimed they were
excluded from his bankruptcy estate. John McDonnell, the
Chapter 7 trustee,i2 filed a complaint seeking a declaratory
judgment that the Plans were, in fact, available to Gilbert’s
creditors. The complaint alleged that their operation flouted
rules in both ERISA and the IRC. App. 1628–30 (“Virtually
from its inception, the Debtor utilized the 401(k) Plan as an
extra bank account without having to pay required taxes.”). As
to the counts before us, the Bankruptcy Court granted motions
to dismiss them without prejudice. McDonnell filed an
amended complaint, and Gilbert filed a motion to dismiss,
arguing that his interests in the Plans were excluded from the
bankruptcy estate per § 541(c)(2). He noted that each Plan had
anti-alienation language, which he said was “enforceable
under” ERISA such that § 541(c)(2) applied. McDonnell
countered that it did not apply in light of the alleged violations
of ERISA and the IRC. The Bankruptcy Court granted
Gilbert’s motion with prejudice, and the District Court
affirmed. McDonnell appeals to us, and our jurisdiction
follows from 28 U.S.C. § 158(d)(1).
II. Analysis
2 In Chapter 7 cases, a trustee is appointed as representative of
the bankruptcy estate with an eye to maximizing the money
distributed to creditors. 11 U.S.C. §§ 323, 701, 704.

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A. The Retirement Plans Are Excluded from Gilbert’s
Bankruptcy Estate.
While this is an appeal of a District Court decision, “we
view the bankruptcy court’s decision unfettered by the district
court’s determination.” In re Energy Future Holdings Corp.,
990 F.3d 728, 736 (3d Cir. 2021) (quoting In re Brown, 951
F.2d 564, 567 (3d Cir. 1991)). We review without deference
the Bankruptcy Court’s legal analysis. Id. (citing In re Tribune
Co., 972 F.3d 228, 237 (3d Cir. 2020)). So we must affirm its
dismissal of McDonnell’s complaint if we conclude that it does
not “contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
The Bankruptcy Court dismissed Gilbert’s declaratory
judgment claim because “a plain meaning reading of
§ 541(c)(2)” excluded the Retirement Plans from the
bankruptcy estate even if they were operated contrary to
ERISA and the IRC. App. 945–46. It believed its analysis
followed Patterson v. Shumate, a Supreme Court decision
holding that provision’s reference to “applicable
nonbankruptcy law” included federal law like ERISA. 504
U.S. 753 (1992), 758–59. The District Court affirmed on this
reasoning.
But McDonnell claims that Patterson compels us to
reverse. There, the Supreme Court stated that § 541(c)(2)
excluded as bankruptcy estate property an interest in a
retirement plan that “satisfied all applicable requirements of
[ERISA] and qualified for favorable tax treatment under the
[IRC].” Patterson, 504 U.S. at 755. While its decision did not

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focus on compliance with ERISA and the IRC, it repeatedly
used the phrase “ERISA-qualified.” For example, it ended its
opinion by declaring that “a debtor’s interest in an ERISA-
qualified pension plan may be excluded from the . . .
bankruptcy estate pursuant to § 541(c)(2)[.]” Id. at 765.
That choice of words has led to confusion, as “ERISA-
qualified” is “not a term of art and is not defined in the
Bankruptcy Code, the IRC, or ERISA . . . . [I]t is not even a
term used by employee benefit practitioners.” J. Gordon
Christy & Sabrina Skeldon, Shumate and Pension Benefits in
Bankruptcy, 2 J. Bankr. L. & Prac. 719, 724 (1992).
McDonnell encourages us to conclude a plan is “ERISA-
qualified” only if it is tax-qualified and follows ERISA’s rules.
There is a split on this point, with some courts following
McDonnell’s view and others concluding that a plan is
“ERISA-qualified” if it is governed by ERISA. See In re
Meinen, 228 B.R. 368, 378–80 (Bankr. W. D. Pa. 1998)
(summarizing split).
The meaning of “ERISA-qualified” in Patterson strikes
us as beside the point. Even if we assume that McDonnell’s
read of that phrase is right (i.e., a plan is only “ERISA-
qualified” if it is tax-qualified) and that the complaint
persuasively alleges that the Retirement Plans’ operations were
at loggerheads with ERISA and the IRC, Gilbert’s interests in
the Retirement Plans are nonetheless protected by § 541(c)(2).
That conclusion tracks Patterson’s basic rule of
interpretation—the text of the Bankruptcy Code controls. The
Court took the case to resolve the circuit split about whether §
541(c)(2)’s reference to “applicable nonbankruptcy law”
included federal law. 504 U.S. at 766 (Scalia, J., concurring).

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“[T]he plain language of the Bankruptcy Code and ERISA is
our determinant.” Id. at 757 (citing Toibb v. Radloff, 501 U.S.
157, 160 (1991)).
So, following the Patterson court’s lead, we ask the
question provided by the statutory text: whether, assuming (as
McDonnell alleges) that the Retirement Plans did not comply
with ERISA and the IRC, the former nonetheless provides an
“enforceable” bar to alienation of Gilbert’s interest in the
Plans.
McDonnell argues that ERISA’s anti-alienation
language does not apply to retirement plans operated in
violation of its commands.3 He provides no statutory support
for this proposition. And we see none in ERISA’s text. It
would be strange if a statute whose “principal object . . . is to
protect plan participants and beneficiaries[,]” Boggs v. Boggs,
520 U.S. 833, 845 (1997), lowered its shield at the first
violation. Simply put, McDonnell confuses two distinct
questions: whether ERISA applies to (and so governs) the
Retirement Plans and whether the Plans complied with
3 It is unclear whether McDonnell claims that the Retirement
Plans are not governed by ERISA at all. Construed generously,
he does. But his sole argument on this point is an extended cite
to In re Kaplan, 189 B.R. 882, 888–89 (E.D. Pa. 1995).
McDonnell Br. 35–36. He did not do enough to preserve this
argument for our review. “[W]e have consistently refused to
consider ill-developed arguments” and will not break with that
tradition here. Barna v. Bd. of Sch. Dirs., 877 F.3d 136, 145
(3d Cir. 2017) (citations omitted). This argument forfeited, we
proceed as the Bankruptcy Court and District Court did—with
the understanding that the Plans are governed by ERISA.

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ERISA’s requirements. It cannot be the case that a retirement
plan normally governed by ERISA escapes it by brazenly
violating its rules, as McDonnell seems to suggest here. “[I]f
extensive violations of a federal law made that law go away,
the rules would be chimerical.” In re Baker, 114 F.3d 636, 640
(7th Cir. 1997). So we agree with the decisions that conclude
plans governed by ERISA are excluded from the bankruptcy
estate under § 541(c)(2) because of the statute’s anti-alienation
command. Id. at 640 (“[V]iolations of ERISA do not make
ERISA inapplicable . . . . [F]or purposes of Patterson, what
matters is the application of ERISA [to the retirement plan],
rather than observance of its rules.”); In re Handel, 301 B.R.
421, 433 (Bankr. S.D.N.Y. 2003) (concluding that § 541(c)(2)
protected interest in a retirement plan operated contrary to
ERISA’s rules because “a beneficiary’s violation of ERISA is
not a defense to the enforcement of ERISA’s alienation
prohibition”).
Reviewing the IRC, we reach the same result: a
retirement plan governed by ERISA that is not tax-qualified is
still protected by ERISA’s anti-alienation bar. “Nowhere in
ERISA . . . is there a requirement that, to . . . be governed by
[it], a plan must be tax[-]qualified. Indeed, the converse is true:
An ERISA plan that is not or may not be tax[-]qualified
nevertheless continues to be governed by ERISA . . . .” Traina
v. Sewell (In re Sewell), 180 F.3d 707, 711 (5th Cir. 1999).
McDonnell provides us no authority to the contrary.
He nonetheless offers cases suggesting that the
Retirement Plans are not protected by § 541(c)(2). One is In
re Goldschein, a bankruptcy court ruling that a retirement
“plan must comply with provisions of both” ERISA and the
IRC to be excluded under § 541(c)(2). 244 B.R. 595, 601

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(Bankr. D. Md. 2000). That opinion started by noting that
“Congress intended the provisions of ERISA and the
provisions of the [IRC] to work in consort.” Id. However,
Congressional intent is not self-executing: the statutory text
controls.
That court did not perform its own statutory analysis,
instead announcing that it agreed with other decisions’ reading
of the relevant law. It relied on In re Hall, which is
distinguishable: the pension plan there was “not subject to
ERISA.” 151 B.R. 412, 421 (Bankr. W.D. Mich. 1993). And
while Hall’s analysis of Patterson and Sixth Circuit caselaw
suggests that “ERISA-qualified” plans, as the term was used
by the Supreme Court, must be both tax-qualified and
governed by ERISA, id. at 417–20, that does not answer
whether § 541(c)(2) applies to the Retirement Plans in light of
their alleged non-qualification under the IRC.
Goldschein also looked to In re Harris, which
emphasized that the debtor, who was also the plan
administrator, “use[d] . . . the [retirement p]lan as a personal
bank[,]” which “justifie[d]” concluding that § 541(c)(2) did not
exclude the plan at issue from the bankruptcy estate. 188 B.R.
444, 450–51 (Bankr. M.D. Fla. 1995). But Harris points to no
statute or authority suggesting that ERISA’s anti-alienation bar
fails to protect from misbehaving plan administrators.4
4 Without citing any statute or case law, the Harris court also
stated that “it cannot be gainsaid that even if the plan is facially
ERISA-qualified, it must be operated in full [compliance with]
ERISA and also the [IRC]” to be excluded under § 541(c)(2).
188 B.R. at 449. As noted above, we see no support in the text
of ERISA or the IRC for that claim.

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Instead, it cites cases dealing with retirement plans that were
not governed by ERISA. Id. at 450.5 In fact, it appears that
ERISA’s anti-alienation rule extends to malefactors in charge
of retirement plans. Guidry v. Sheet Metal Workers Nat’l
Pension Fund, 493 U.S. 365, 376–77 (1990).
Finally, McDonnell makes an appeal to equity. If we
affirm, Gilbert “will receive a windfall of over $1 million in a
sham retirement account while living in Puerto Rico at the
expense of his creditors.” McDonnell Reply Br. 5. but the
Supreme Court informs us that equity cannot be used to
override bankruptcy’s detailed scheme delineating the property
of the bankruptcy estate, Law v. Siegel, 571 U.S. 415, 421–22
(2014), or ERISA’s anti-alienation bar, Guidry, 493 U.S. at
376–77.
This result follows our rules of statutory interpretation.
While § 541(c)(2) does not condition exclusion on tax
qualification, the Bankruptcy Code allows the debtor to exempt
certain retirement benefits if they are qualified under the IRC.
See, e.g., Bankruptcy Code § 522(d)(12) (allowing debtor to
5 McDonnell’s other authorities are similarly not on point. In
re Lane is distinguishable because the plans there were not
“subject to the provisions of ERISA.” 149 B.R. 760, 766
(Bankr. E.D.N.Y. 1993). The decision in In re Copulos relied
on an anti-alienation restriction found in New Jersey law—not
ERISA—to exclude a pension plan from the bankruptcy estate
under § 541(c)(2). 210 B.R. 61, 63–66 (Bankr. D.N.J. 1997).
And In re Yerian asked whether a pension plan was exempt
under § 522—not excluded under § 541—from the bankruptcy
estate. 927 F.3d 1223, 1225–26 (11th Cir. 2019).

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exempt “[r]etirement funds to the extent that those funds are in
a fund or account that is exempt from taxation under . . . the
[IRC]”). This “shows that Congress knew how to draft the kind
of statutory language that [McDonnell] seeks to read into”
§ 541(c)(2) and simply decided not to do so. State Farm Fire
& Cas. Co v. United States ex rel. Rigsby, 580 U.S. 26, 36
(2016).6 We must “implement Congress’s choices” as
reflected by the language it used in the Bankruptcy Code, not
“remake them.” Health and Hosp. Corp. of Marion Cnty. v.
Talevski, 599 U.S. 166, 178 (2023) (citing Azar v. Allina
Health Servs., 587 U.S 566, 580–83 (2019)).
To recap, the Supreme Court told us in Patterson that §
541(c)(2) means what it says: interests in trusts are not part of
the bankruptcy estate if applicable law prohibits their
alienation. That decision also teaches that ERISA, which
governs the Retirement Plans, sufficiently restricts transfer to
exclude interests in pension plans. McDonnell has not pointed
us to any language in ERISA, the IRC or any other statute that
disables those protections if a retirement plan violates ERISA’s
rules or is not tax-qualified. So § 541(c)(2) excludes the
Retirement Plans, even if their operation did not comply with
ERISA and the IRC. Accordingly, the Bankruptcy and District
Courts correctly dismissed McDonnell’s claim for declaratory
judgment.
6 Patterson used similar logic. Because other sections of the
Bankruptcy Code explicitly reference state law standing alone,
the Supreme Court read § 541(c)(2)’s general reference to
“applicable nonbankruptcy law” to encompass both state and
federal law. 504 U.S. at 758 (“Congress, when it desired to do
so, knew how to restrict the scope of applicable law to ‘state
law’ and did so with some frequency.”).

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B. McDonnell’s Other Arguments Are Unpersuasive.
1. Dismissals of Avoidance Actions. The amended
complaint also sought to unwind various transactions related to
the Retirement Plans. First, it targets Gilbert’s 2020 divorce
settlement with his ex-wife. It awarded Gilbert his ex-wife’s
share of the Plans (over $800,000). McDonnell claims this was
a preferential transfer, an actual fraudulent conveyance, and a
constructive fraudulent conveyance. It must be noted that
McDonnell does not claim that the divorce settlement as a
whole was avoidable; he solely objects to Gilbert’s receipt of
his ex-wife’s share of the Plans because (McDonnell claims)
she “had no right to . . . award her share of the Retirement
[Plans] to” Gilbert. App. 1181. McDonnell also sought to
unwind all transfers from Gilbert’s business to the Plans over
the prior decade.
The Bankruptcy Court dismissed these counts of
McDonnell’s initial complaint because “[t]here are no facts
pled to establish that” the transactions at issue were “transfer[s
from Gilbert] to a third party that must be clawed back.” App.
1206. It dismissed these counts of the amended complaint for
much the same reason, as none of those transactions could be
avoided because they were not transfers of Gilbert’s “interest .
. . in property[.]” Bankruptcy Code §§ 547(b) (preferential
transfer); 548(a)(1) (fraudulent conveyance). The District
Court affirmed for this reason.
McDonnell’s argument before us simply does not
address these issues, and that is fatal to his claims. To state a
claim for a preferential transfer or fraudulent conveyance, a

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complaint must allege a “transfer” of the debtor’s interest in
property. Bankruptcy Code §§ 547(b); 548(a)(1). But
Gilbert’s receipt of funds (into the Retirement Plans) is not a
transfer under the Bankruptcy Code, which defines a transfer
as any “mode . . . of disposing of or parting with . . . an interest
in property.” Id. § 101(54)(D)(ii). And he did not “part with”
this money—he received it; the transferred funds were his ex-
wife’s and business’s property, not his. So McDonnell’s
arguments fail as a matter of law.
2. Denial of Leave to Amend. The Bankruptcy Court
dismissed McDonnell’s claims with prejudice in light of the
“pervasive problems” it saw with his initial and amended
complaints, including “faulty logic[.]” App. 884. That Court
found it “disquieting that at many points . . . the Trustee’s
[McDonnell’s] complaint and brief . . . fail[] to recognize . . .
crucial distinctions” in fact and law. Id. at 855. The District
Court affirmed because McDonnell “does not suggest that
there are facts that could have been plead that would have
altered the . . . analysis” of the proposed avoidance actions or
creditors’ ability to recover from the Retirement Plans. Id. at
33. Before us, he asks permission to file a further amended
complaint “after additional formal discovery” and emphasizes
our general policy allowing litigants to amend their complaints.
McDonnell Br. 80.
We review the Bankruptcy Court’s decision to dismiss
McDonnell’s complaint with prejudice for abuse of discretion.
United States ex rel. Zizic v. Q2Administrators, LLC, 728 F.3d
228, 234 (3d Cir. 2013). A court abuses its discretion when it
makes an error of law (reviewed without deference), Equal
Emp. Opportunity Comm. v. City of Long Branch, 866 F.3d 93,
98 (3d Cir. 2017) (citing Chao v. Cmty. Tr. Co., 474 F.3d 75,

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79 (3d Cir. 2007)), or makes a “clear error of judgment,” which
requires an appellant to show more than merely “a different
result [could have] arguably be[en] . . . obtained when applying
the law to the facts of the case,” Coleman v. Home Depot, Inc.,
306 F.3d 1333, 1341 (3d Cir. 2002) (quoting SEC v. Infinity
Grp. Co., 212 F.3d 180, 195 (3d Cir. 2000)). If “no new factual
allegations” could result in a viable claim, then a court does not
abuse its discretion by concluding that “amendment would be
futile.” Pacira BioSciences, Inc. v. Am. Soc’y of
Anesthesiologists, Inc., 63 F.4th 240, 249–50 (3d Cir. 2023).
As discussed above, the Retirement Plans are excluded
from the bankruptcy estate even if they were operated in
violation of ERISA and the IRC, so no further allegations of
rulebreaking would result in a viable claim on that count. And
McDonnell cannot plead any facts turning Gilbert’s ex-wife’s
interest in the Retirement Plans into his property or
transforming his receipt of those funds into a “transfer” for
purposes of the Bankruptcy Code. Further amendment of
McDonnell’s complaint would be futile.
3. Order Shortening Time. On August 26, 2022,
McDonnell filed a notice of appeal to the District Court
challenging the Bankruptcy Court’s decision dismissing his
claims. He submitted a designated record on September 8. In
response, Gilbert filed a motion to strike certain items from the
record on September 16. He subsequently filed a motion to
shorten time on September 20. Gilbert noted that the first brief
in the appeal was due on October 11 and hoped to resolve the
scope of the record before appellate briefs were submitted to
the District Court. The Bankruptcy Court granted the motion
and held oral argument on October 4. McDonnell says the

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motion should have been denied because there was no
emergency requiring expedited briefing.
A bankruptcy court has discretion to manage its docket
by shortening a notice period. Fed. R. Bankr. P. 9006(c)(1).
“We will not interfere with a . . . court's control of its docket
except upon the clearest showing that the procedures have
resulted in actual and substantial prejudice to the complaining
litigant.” In re Asbestos Prods. Liab. Litig. (No. VI), 921 F.3d
98, 109 (3d Cir. 2019) (quoting In re Fine Paper Antitrust
Litig., 685 F.2d 810, 817 (3d Cir. 1982) (internal quotation
marks omitted)). The District Court did “not find that
[McDonnell] was substantially prejudiced” by the order
shortening time. App. 14. Before us, he complains that the
Bankruptcy Court’s scheduling decisions favored Gilbert, but
he (McDonnell) does not identify any prejudice (let alone
substantial prejudice) flowing from this alleged favoritism.
4. Order Striking Items. The Bankruptcy Court granted
Gilbert’s motion to strike certain items from McDonnell’s
proposed appellate record. It concluded that the documents at
issue were “irrelevant” because they “could not have formed
the basis of [its] ruling” on the motion to dismiss, and including
them “would only serve to potentially confuse” reviewing
courts about “the very limited nature” of the dismissal ruling.
App. 680. McDonnell asserts this was error because “an
expansive record is warranted in these proceedings[,]”
McDonnell Br. 29, and all the documents were “presented by
[him] in [his] pleadings[.]” Id. at 22.
Federal Rule of Bankruptcy Procedure 8009(e)(1)
makes clear that the Bankruptcy Court may decide disputes
about the scope of the record on appeal. Neither party

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identifies a standard of review for its decisions under that rule.
But the question of whether the “record accurately discloses
what occurred in the bankruptcy court,” id., strikes us as
similar to whether evidence’s “probative value” is outweighed
by the risk of “confusing the issues . . . or needlessly presenting
cumulative evidence,” Fed. R. Evid. 403. We review those
determinations for abuse of discretion, Egan v. Del. River Port
Auth., 851 F.3d 263, 275 (3d Cir. 2017), and we will apply the
same standard here.
McDonnell argues that the Bankruptcy Court abused its
discretion for two reasons. First, he claims that Court ignored
our decision in Nantucket Investors II v. Cal. Fed. Bank (In re
Indian Palms Assocs., Ltd), 61 F.3d 197 (3d Cir. 1995). He
reads it to require that a bankruptcy appellate record include
any designated item in either “the contested matter at issue” or
“the underlying bankruptcy case” itself. McDonnell Br. 22–
23. Not so. While Indian Palms discussed the outer limits of
the bankruptcy record, it did not require that every item in the
record of a contested matter or bankruptcy case be included.
61 F.3d at 203–05.
Second, McDonnell claims that the Bankruptcy Court
erred because, when considering disputes over the appellate
record, “it is better to err on the side of caution, include the
items, and allow the appellate court to determine the relevance
of the designated items.” Church Joint Venture, L.P. v.
Blasingame (In re Blasingame), 559 B.R. 692, 701 (B.A.P. 6th
Cir. 2016). But here we are asked to review an order granting
a motion to dismiss for failure to state a claim. It is generally
incorrect to consider “evidence extrinsic to the complaint” in
this posture. In re Asbestos Prods. Liab. Litig. (No. VI), 822
F.3d 125, 134 (3d Cir. 2016). Accordingly, the Bankruptcy

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Court did not make a “clear error of judgment[,]” Coleman.,
306 F.3d at 1341, by striking portions of McDonnell’s
proposed record.
Estoppel and Due Process. McDonnell alleges that
Gilbert disclosed his 2012 W-2 only “at the conclusion of
mediation, despite representing to the Bankruptcy Court . . .
that he had produced all the documents required and
requested.” McDonnell Br. 28. Accordingly, McDonnell asks
us to use judicial or equitable estoppel to “bar [Gilbert] from
using any evidence . . . that relied on . . . documents not
previously disclosed to [McDonnell.]” Id. at 84.
Despite repeated requests, Gilbert also declined to tell
McDonnell the identity of an administrator of the Retirement
Plans. McDonnell claims that this violated his due process
rights.
We will not grant McDonnell relief on these issues,
which the District Court summarily disposed of as
underdeveloped and inconsequential. As the Court explained,
whatever McDonnell’s frustration with Gilbert’s case, we do
not find an “appropriate basis for use of estoppel.” App. 66.
And McDonnell’s meager due process arguments in our Court,
as in his appeal to the District Court, never explain how his
learning the identity of the Plans’ new administrator “would
have altered the outcome or would influence the issues
presented” on appeal. Id. at 65. We thus affirm the District
Court on these issues.
* * * *

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We therefore affirm in all respects the District Court’s
order rejecting McDonnell’s challenges to the Bankruptcy
Court’s decisions.

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