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In re Motors Liquidation Co.

United States District Court, S.D. New York

July 24, 2015

In the Matter of Motors Liquidation Company. SHERIF RAFIK KODSY, Appellant,


VALERIE CAPRONI, District Judge.

Appellant Sherif Rafik Kodsy ("Kodsy" or "Appellant") appeals pro se from the decision of the United States Bankruptcy Court for the Southern District of New York (Robert E. Gerber, B.J.) expunging his proof of claim against Motors Liquidation Company GUC Trust (the "GUC Trust" or "Appellee"). For the following reasons, the decision of the Bankruptcy Court is AFFIRMED and the case is DISMISSED.


Appellant identifies himself as "a migrant from Egypt" who has been a United States citizen for over thirty years and previously owned his own contracting business. Appeal Brief for Order Expunging Claim ("Appellant Br."), Dkt. 4, at 7. The GUC Trust was established to settle the claims of unsecured creditors against General Motors Corporation after General Motors filed for bankruptcy in 2009. Although Appellant's submissions can be at times difficult to comprehend, the basis of Appellant's claim is that he was injured by a 2008 Hummer H2 (the "Hummer"), manufactured by General Motors, which he purchased on August 19, 2008.[1] Appellant's Response to Debtors Answer [sic] ("Reply"), Dkt. 12, Ex. 1. Specifically, Kodsy claims that he "developed a brain injury, a knee meniscus tear, an umbilical hernia" and vision problems as a result of "excessive and prolonged use of the subject vehicle, with a 6.2 litre engine."[2] Appellant Br. at 4. It is difficult to determine to what extent Appellant alleges his injuries were caused by this particular Hummer, claimed to be "a show truck not intended to be placed in the stream of sales, " id. at 2, or by a general defect in all Hummers that also injured, through excessive vibrations, "other owners of the similar truck" or "similar models with a 6.2 litre engine, " id. at 5. Kodsy contends that "[t]he new General Motors, should have bio-mechanical service stations across the country independent from the dealer's auto repair shops, to test, warn, and conform elevated vibration issues to save human lives." Id. at 7 (emphasis in original); see also CD-13, Bank. Dkt. 11589 ¶ 23 ("[T]his claimant is for all injured persons in the Hummer class").[3] In earlier proceedings, Kodsy produced no "objective evidence of an injurious level of vibration, " and due to his "voluntary disposal of the subject vehicle, " Kodsy "does not appear likely to obtain [] the expert testimony necessary to establish the existence of any actionable product defect or prove that the alleged defect caused his injuries." CD-18, Bank. Dkt. 12564, Ex. A.

Appellant has already litigated these personal injury claims at some length but to no avail in the Florida state courts. On March 31, 2009, Kodsy filed a complaint relating to the Hummer against General Motors in Florida state court that included a "Lemon Law" claim, alleging that General Motors sold him a defective vehicle. Reply at 2; Appellee's Brief in Opposition ("Appellee Br.") at 7. That lawsuit was pending when General Motors filed for bankruptcy, at which time most claims against General Motors were automatically stayed. CD-14, Bank. Dkt. 11604. Lemon Law claims were part of the relatively narrow set of liabilities that the new General Motors (General Motors Company LLC) assumed from the old General Motors in the bankruptcy proceedings; such claims were, therefore, not subject to the automatic bankruptcy stay. The stay applied to the balance of Kodsy's claims, however.[4] Reply at 2; Appellee's Br. at 7 n.11; see also CD-1, Bank. Dkt. 2968, Ex. A at 29. Final judgment on Kodsy's Lemon Law claims was entered for General Motors pursuant to a jury verdict.[5] Reply Ex. 3; CD-18, Bank. Dkt. 12564, Ex. A. The Florida Fourth District Court of Appeal affirmed that decision in May of 2012. Kodsy v. General Motors Corp., 93 So.3d 1043 (Fla. Dist. Ct. App. 2012) ( per curiam ) (table) (" Kodsy I ").

On May 22, 2013, the Bankruptcy Court modified the automatic stay, so that Kodsy's remaining claims relating to the Hummer could proceed in the Florida state courts. CD-16, Bank. Dkt. 11743. The judge assigned to the remaining claims was the same judge who had tried Kodsy's Lemon Law claims. Kodsy v. General Motors Corp., 163 So.3d 1217 (Fla. Dist. Ct. App. 2014) ( per curiam ) (table) (" Kodsy II "); see also CD-18, Bank. Dkt. 12564, Ex. A. The presiding judge, after a hearing, granted Motors Liquidation Company's motion to declare Kodsy a "vexatious litigant" who was unlikely to prevail on the merits of his case. CD-18, Bank. Dkt. 12564, Ex. A. Appellant was required to submit security of $35, 000 to proceed with the case.[6] Id. Upon his failure to do so, the Florida court dismissed his claims with prejudice. CD-18, Bank. Dkt. 12564, Ex. B. The Florida Appellate Court affirmed without opinion and denied Appellant's Motion for Reconsideration. Kodsy II, 163 So.3d 1217; see also Appellee Br. at 7-8. Appellant appealed to the Florida Supreme Court, which denied jurisdiction, citing Jackson v. State, 926 So.2d 1262 (Fla. 2006) ( per curiam ), and Jenkins v. State, 385 So.2d 1356 (Fla. 1980). Kodsy v. General Motors Corp., 160 So.3d 896 (Fla. 2015) (table); see also CD-19, Bank. Dkt. 13092, Ex. A. Under Florida law, the Florida Supreme Court "lacks jurisdiction over unelaborated per curiam decisions in the context of discretionary review jurisdiction." Jackson, 926 So.2d at 1265.

Because Appellant's underlying personal injury claims were fully adjudicated by the Florida state courts in favor of General Motors and the GUC Trust, the Bankruptcy Court expunged Appellant's proof of claim on March 25, 2015, CD-22, Bank. Dkt. 13104, over Appellant's objection, CD-23, Bank. Dkt. 13106. Appellant filed a Notice of Appeal on April 15, 2015. CD-24, Bank. Dkt. 13111.


District courts have appellate jurisdiction over bankruptcy court rulings under 28 U.S.C. § 158(a)(1). "A district court reviews a bankruptcy court's findings of fact for clear error and its conclusions of law de novo. " Thakur v. S.J.P.B., Inc. (In re Thakur), 498 B.R. 410, 418 (S.D.N.Y. 2013) (citing Overbaugh v. Household Bank, N.A. (In re Overbaugh), 559 F.3d 125, 129 (2d Cir.2009)).

The Court recognizes the difficulties pro se litigants face. "Courts should go to lengths to ensure that inexperienced pro se litigants do not inadvertently forfeit rights or winning arguments; this special solicitude' includes a liberal construction of papers and a flexibility on some otherwise-rigid procedural rules." Tartt v. City of New York, No. 12-CV-5405(VEC), 2014 WL 3702594, at *2 (S.D.N.Y. July 16, 2014) (quoting Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010)); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[a] document filed pro se is to be liberally construed") (internal quotation marks omitted). Appellee observes that Appellant's brief fails to comply with the requirements of Bankruptcy Rule 8014, Appellee's Br. at 9 n.12, but Appellee did not cite any case in which a pro se bankruptcy appeal was resolved on that basis, and the Court need not decide this appeal on that formalistic basis.

Although the Court shows "special solicitude" to pro se litigants, pro se litigants must still satisfy the relevant legal standards for their claims to succeed. Cf. Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (a pro se plaintiff must meet the requirements necessary to defeat a motion for summary judgment).[7]

The only issue before the Court on this appeal is whether the Bankruptcy Court properly expunged Appellant's claim as a creditor against the GUC Trust.[8] See CD at 2. In considering Appellant's brief, there are three arguments Appellant conceivably could be making: first, that the Bankruptcy Court improperly modified the automatic stay to allow his personal injury claims to proceed in the Florida state courts; second, that the Florida state courts improperly adjudicated his claims or otherwise violated his rights; or third, that despite the decision of the Florida state courts, the Bankruptcy Court improperly expunged Appellant's claim. Assuming each of these arguments is before the Court and timely, none has merit.

I. Modifying the Automatic Stay

Kodsy does not explicitly argue in his brief that the Bankruptcy Court erred by allowing the personal injury case to proceed in the Florida state courts, but in April 2012 he did object to modifying the automatic stay to allow the Florida state courts to try his personal injury claims.[9] CD-13, Bank. Dkt. 11589. On the other hand, Appellant's brief evinces his desire to have pursued that case further in the state courts. See Appellant Br. at 8 ...

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