United States District Court, S.D. New York
In re BRADLEY C. REIFLER, Debtor.
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
N. Kinel Squire Patton Boggs LLP New York, New York Counsel
OPINION AND ORDER
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.
the facts relevant to the disposition of this matter are set
1, 2017, Appellee filed a complaint against Appellant,
initiating an adversary proceeding in Appellant's ongoing
Chapter 7 bankruptcy case. (Bankr. Doc. 1.)
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.)
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.)
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. 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.
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.) 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.
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.”
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.)
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 ...