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In re Reifler

United States District Court, S.D. New York

June 28, 2018

In re BRADLEY C. REIFLER, Debtor.
v.
NORTH CAROLINA MUTUAL LIFE INSURANCE COMPANY, Appellee. BRADLEY C. REIFLER, Appellant,

          Michael D. Siegel Siegel & Siegel, P.C. New York, New York Counsel for Appellant

          Norman N. Kinel Squire Patton Boggs LLP New York, New York Counsel for Appellee

          OPINION AND ORDER

          CATHY SEIBEL, U.S.D.J.

         Before the Court is the motion of creditor North Carolina Mutual Life Insurance Company (“Appellee”) to dismiss, for lack of jurisdiction and for failure to prosecute, the appeal filed by Appellant Bradley C. Reifler. (Doc. 5 (“Appellee's MTD”).) Appellee also moves for attorneys' fees and double costs incurred in defending the appeal. (Doc. 7 (“Appellee's Fees Motion”).) For the reasons stated below, the motion to dismiss is GRANTED and the motion for fees and costs is GRANTED in part.

         I. BACKGROUND

         Only the facts relevant to the disposition of this matter are set forth below.

         On May 1, 2017, Appellee filed a complaint against Appellant, initiating an adversary proceeding in Appellant's ongoing Chapter 7 bankruptcy case. (Bankr. Doc. 1.)[1]

         On December 28, 2017, the Bankruptcy Court ordered Appellant to turn over, or provide access to, all electronic devices and data for forensic inspection and data collection (the “ESI Order”). (Bankr. Doc. 98.)

         On January 16, 2018, Appellee moved for an order finding Appellant in contempt for not complying with the ESI Order. (Bankr. Doc. 104.) After holding a hearing, the Bankruptcy Court on February 6, 2018 found Appellant in contempt for his “ongoing and willful violation of [the] ESI Order” and, pursuant to Federal Rule of Civil Procedure 37(b)(2)(C) and Federal Rule of Bankruptcy Procedure 7037, ordered him to pay Appellee's costs and attorneys' fees in connection with the contempt motion and the fees and costs of the vendor that had attempted to create a forensic image of Appellant's devices (the “February 2018 Order”). (Bankr. Doc. 117 at 2-5.)

         On February 14, 2018, Appellant - who was represented in the Bankruptcy Court proceedings - filed a notice of appeal pro se, seeking District Court review of the February 2018 Order. (Doc. 1.) His notice of appeal did not include a copy of the February 2018 Order, the mandatory filing fee, or a motion for leave to appeal.[2] The Clerk of Court set March 1, 2018, fourteen days after Appellant filed his notice of appeal, as the deadline to “file with the bankruptcy clerk and serve on the appellee a designation of the items to be included in the record on appeal and a statement of the issues to be presented, ” referred to as a “Designation and Statement.” Fed. R. Bank. P. 8009(a)(1)(A)-(B). The fourteen-day deadline passed with no Designation and Statement.

         This Court received the appeal on March 22, 2018, and the Clerk of Court made April 23, 2018 the deadline for Appellant's brief, presumably pursuant to Federal Rule of Bankruptcy Procedure 8018(a)(1). (Doc. 3.)[3] One week later, on March 29, Appellee moved to dismiss the appeal and for attorneys' fees and double costs in defending the appeal. (Docs. 5, 7.) Appellant's response to the motion to dismiss was due April 9, 2018, but he missed that deadline too.[4]

         On April 23, 2018, Appellant requested an extension, claiming that he “had not received any information other than an acknowledgment that [his] appeal had been received.” (Doc. 8.)

         After hearing from both parties, and in light of Appellant's pro se status at that time, the Court extended the time for Appellant to oppose Appellee's motion to dismiss to May 14, 2018. (Doc. 11.) Appellant submitted his opposition on May 10, (Doc. 12 (“Appellant's Opp.”)), and Appellee replied on May 22, (Doc. 17 (“Appellee's Reply”)). Appellant's counsel also appeared on May 10. (Doc. 13.)

         In the meantime, on May 4, 2018, the Bankruptcy Court issued another order (the “May 2018 Order”), finding Appellant in continuing contempt of the ESI Order, imposing additional sanctions, and entering a default judgment against ...


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