Davis v. Shepard (In Re Strickland & Davis International, Inc.) ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13104
Non-Argument Calendar
________________________
D.C. Docket Nos. 5:12-mc-02201-KOB; 08-bkc-80266-JAC-7
In Re: STRICKLAND AND DAVIS INTERNATIONAL, INC.
Debtor.
____________________________________________________
ROY W. DAVIS,
VONCILE DAVIS,
CINDY TAYLOR,
MELISSA TERRELL,
Plaintiffs-Appellants,
versus
TAZEWELL T. SHEPARD, III,
(Trustee),
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 11, 2015)
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Before TJOFLAT, WILSON, and JULIE CARNES, Circuit Judges.
PER CURIAM:
This appeal arises from the Chapter Seven bankruptcy of appellant
Strickland and Davis International, Inc. (“Strickland” or “the Strickland
Corporation”). Appellants Strickland, Roy Davis, Voncile Davis, Cindy Taylor,
and Melissa Terrell all seek to appeal an order of the bankruptcy court affirming
the Final Report of Strickland’s bankruptcy estate trustee, Tazewell T. Shepard, III
(the “Trustee”). The district court found appellants’ notices of appeal to be
untimely and insufficient, and consequently dismissed them for lack of
jurisdiction. Alternatively, the court also dismissed on the ground of equitable
mootness. We disagree that all of the appeal notices were untimely, 1 but we do
agree that they were equitably moot. We therefore affirm.
I. BACKGROUND
In April 1996, Strickland entered into a joint venture with Samara
Consultant Group (“Samara”) to pursue grain sales in the Republic of Yemen, with
the parties agreeing to split evenly any profits resulting from their business
endeavors. At some point thereafter, Strickland contracted with the Republic of
Yemen for the delivery of grain, which contract the Republic subsequently
1
As discussed, we agree that four of the notices were untimely.
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breached. Despite obtaining an arbitration award in its favor from the Grain and
Feed Trade Association in London for $27.1 million, Strickland ultimately settled
its claim against the Republic for $16.325 million.
Strickland forwarded $1 million of the settlement recovery to Samara. As an
equal joint venture partner, Samara felt itself entitled to a greater share, and so
filed a breach of contract lawsuit in the Northern District of Alabama in 2002 (the
“breach of contract action” or “contract action”). Two years later, on April 21,
2004, a jury found in favor of Samara, awarding it $1,075,851.37. Then, upon the
recommendation of a magistrate judge, the district court imposed a constructive
trust on proceeds Roy Davis had received from Strickland’s settlement with the
Republic of Yemen, even though Davis had earlier been dismissed from the
contract action, based on a concern that the transfer of funds was potentially
fraudulent.
In November 2004, the district court entered a final judgment reflecting the
jury’s verdict and pre-judgment interest, which it later amended by consent of the
parties. The amended judgment required immediate payment into the court’s
registry of $250,000, with the remainder of the judgment due within thirty days.
The amended judgment further provided that, upon payment of a 10% supersedeas
bond, the judgment’s execution would be automatically stayed pending the
outcome of an appeal to this Court.
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Roy Davis made the initial $250,000 payment to the district court’s registry
but, facing a liquidity crisis, he struggled to pay the remainder and ultimately filed
for Chapter 11 bankruptcy. Eventually—more than two years later—the parties
reached an agreement that required Roy and Voncile Davis to convey to the district
court the mortgage on their property, which was worth more than $1.5 million at
the time.
Amid and following the parties’ payment negotiations, a complicated web of
appeals, remands, and motions occurred, none of which are germane to the present
appeal. The important takeaway from the considerable procedural history is that,
in the breach of contract action, the district court dissolved the constructive trust
placed on assets that Roy Davis had received from the Yemeni settlement, while
the underlying judgment against Strickland, against which Davis conveyed to the
court $250,000 and a mortgage, remained in place.
The next important development came in January 2008, when Strickland
filed a Chapter Seven bankruptcy petition (the “Chapter Seven case”). Because the
breach of contract action was still ongoing, the district court in that case and the
bankruptcy court in the Chapter Seven case issued orders noting concurrent
jurisdiction over the parties’ claims. Later, in November 2010, the district court in
the breach of contract action granted summary judgment in favor of the Trustee—
who had been substituted as the plaintiff upon his appointment as trustee of
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Strickland’s bankruptcy estate—and referred the case to the bankruptcy court for
further proceedings. The losing parties—Roy Davis, Voncile Davis, Cindy Taylor,
Melissa Terrell (the “Davis defendants”)—appealed the summary judgment order
to this Court, but we dismissed the appeal as untimely.
Thus, when the bankruptcy court received the case with the district court’s
summary judgment ruling intact, it ordered the clerk of the district court to
“disburse and remit” to the Trustee the $250,000 deposited into its registry by Roy
Davis. The bankruptcy court further ordered that, “in the event of a ruling” by this
Court on an intervening motion for reconsideration filed by the Davis defendants,
the clerk of the district court must “immediately transfer and assign to the Trustee
the real estate mortgage given by Roy Davis and his wife, Voncile Davis, against
their residence in favor of the [district court] in the amount of $1,134,622.33.” We
denied the Davis defendants’ motion for reconsideration on September 28, 2011,
and the district court conveyed to the Trustee the Davis’s mortgage soon thereafter.
Following a number of hearings regarding attorneys’ fees and the Trustee’s
compensation, in March 2012 the Trustee submitted his Final Report to the
bankruptcy court. In his report the Trustee (1) proposed to transfer to Samara—
Strickland’s only creditor by virtue of the judgment in the breach of contract
action—the mortgage conveyed to him by Roy and Voncile Davis via the clerk of
the district court and (2) requested compensation for his administration of
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Strickland’s bankruptcy estate. No objections having been filed, the bankruptcy
court affirmed the Trustee’s Final Report on May 1, 2012.
But then, on May 10, 2012, Roy Davis—in both his individual capacity and
on behalf of Strickland 2—filed a notice of appeal, to the district court, of the
bankruptcy court’s May 1 order. Therein, Davis alleged multiple grounds for
appeal, including: the right to an automatic stay in the bankruptcy court by virtue
of status as a “defendant in the underlying case”; questions regarding the finality
and status of orders and motions before the bankruptcy and district courts;
suspicion of a fraud committed on the court by A.M. Samara; and assertions that
the “settlement and compromise is unconstitutional” and violates the Patriot Act.
The bankruptcy court notified Roy Davis that the May 10 notice of appeal
was insufficient for (1) lack of a certificate of service, (2) lack of a signature by the
movant, and (3) lack of an accompanying “Official Form 17[.]” The court allowed
Davis fourteen days from entry of the order to correct the deficiencies. On May
29, 2012, Davis submitted three sets of documents: first, notices of appeal on
behalf of Strickland signed pro se by Roy Davis, Voncile Davis, Cindy Taylor, and
Melissa Terrell (the “Strickland Notices”); second, notices of appeal for Roy
Davis, Voncile Davis, Cindy Taylor, and Melissa Terrell in their individual
2
Or so it appeared to the district court.
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capacities (the “Individual Capacity Notices”); and third, certificates of service
signed by Roy Davis, Voncile Davis, Cindy Taylor, and Melissa Terrell.
In an order issued on June 18, 2014, the district court ruled that the
Strickland Corporation and Individual Capacity Notices were insufficient. As to
the former, the district court observed they were signed by Roy Davis, who is not
an attorney. 3 Reasoning that a corporation cannot proceed pro se, the district court
dismissed the Strickland Corporation’s appeal. As to the Individual Capacity
Notices, the district court found them to be untimely. Specifically, the court
reasoned that the order these individuals sought to appeal was issued on May 1,
2012, but they did not file their notices of appeal until May 29, 2012. Because this
date fell outside the fourteen-day window imposed by Bankruptcy Rule 8002, the
court concluded that it could not consider the three appeals.
As to Roy Davis, the district court concluded that it could not consider his
appeal for three reasons. First, Davis failed to file his notice of appeal by May 25,
2012, which the district court calculated to be the deadline, based on the
bankruptcy court’s May 11 order giving him fourteen days to do so. Second,
Davis did not have a personal financial stake in Strickland’s Chapter Seven
3
The court described the Strickland Notices as signed by Roy Davis, alone. Actually,
Roy Davis, Voncile Davis, Cindy Taylor, and Melissa Terrell, each, submitted a notice on
Strickland’s behalf. This fact does not alter the district court’s or this Court’s analysis, though:
other than the signatories, none of whom are attorneys, the Strickland Notices are identical.
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proceeding and therefore lacked standing to appeal the bankruptcy court’s May 1
order. And third, the appeal was moot because (1) Samara had foreclosed upon
Davis’s property and (2) the bankruptcy plan had been “fully completed.”
So concluding it lacked jurisdiction to consider the notices of appeal filed by
Strickland, Roy Davis, Voncile Davis, Cindy Taylor, and Melissa Terrell, the
district court dismissed them. This appeal followed.
II. STANDARD OF REVIEW
Whether made by the bankruptcy or district court, we review determinations
of law de novo. In re Williams, 216 F.3d 1295, 1296 (11th Cir. 2000). We
likewise review questions of subject matter jurisdiction de novo. Doe v.
Drummond Co., Inc., 782 F.3d 576, 593 (11th Cir. 2015).
III. ANALYSIS
This case requires the Court to evaluate the district court’s treatment of three
sets of notices of appeal: first, the Strickland Notices, filed on behalf of the
company by Roy Davis, Voncile Davis, Cindy Taylor, and Melissa Terrell; second,
the Individual Capacity Notices filed by Roy Davis, Voncile Davis, Cindy Taylor,
and Melissa Terrell; and third, to the extent the district court considered it an
amended notice filed in response to the bankruptcy court’s May 11, 2012 order, the
notice of appeal filed by Roy Davis in his individual capacity (the “Roy Davis
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Notice”).4 All three sets were filed May 29, 2012, and all three seek to challenge
the bankruptcy court’s May 1, 2012 order affirming the Trustee’s Final Report and
allowing him to recover compensation for administering Strickland’s bankruptcy
estate. As explained below, we agree that the appeals should have been dismissed.
A. Timeliness of the Notices of Appeal
Appellants proceed pro se. While the Court construes liberally the pleadings
of pro se litigants, it does not excuse them from their duty to abide by procedural
rules. McNeil v. United States, 508 U.S. 106, 113 (1993); Albra v. Advan, Inc.,
490 F.3d 826, 829 (11th Cir. 2007). With certain exceptions inapplicable to this
case, Federal Rule of Bankruptcy Procedure 8002 requires a notice of appeal to be
filed “within 14 days after entry of the judgment, order, or decree being appealed.”
Fed. R. Bankr. P. 8002(a)(1). Compliance with this timeline is mandatory and
jurisdictional: an appellate court lacks authority to consider an untimely notice of
appeal. In re Williams, 216 F.3d at 1298.
i. The Individual Capacity Notices Were Not Timely Filed
The bankruptcy court entered its order affirming the Trustee’s Final Report
and permitting him to receive compensation for his services on May 1, 2012.
4
We are not totally sold on the argument that Roy Davis filed the May 10, 2012 notice
both on behalf of Strickland and also in his individual capacity. Nevertheless, we will give
Davis the benefit of the doubt and evaluate his May 29, 2012 notice as both an initial filing and
also as an amended notice filed in response to the bankruptcy court’s May 11, 2012 order. See
supra at note 1.
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Voncile Davis, Cindy Taylor, and Melissa Terrell attempted to appeal the court’s
decision by filing their Individual Capacity Notices on May 29, 2012. Because this
date falls outside of the fourteen-day window imposed by Rule 8002, the
Individual Capacity Notices are untimely. Fed. R. Bankr. P. 8002(a)(1). And
because the notices are untimely, the district court correctly determined that it
lacked jurisdiction over these appeals and was right to dismiss them. See In re
Williams, 216 F.3d at 1296–98.
ii. The Strickland and Roy Davis Notices Were Timely Filed
We conclude, however, that the Strickland and Roy Davis Notices were
timely. Strickland and Roy Davis filed their initial notice of appeal on May 10,
2012, which was within fourteen days of the bankruptcy court’s May 1 order. But,
as the bankruptcy court pointed out in an order issued on May 11, 2012, their
notice was deficient based on a (1) lack of a certificate of service, (2) lack of a
signature by the movant, and (3) lack of an accompanying “Official Form 17[.]”
Accordingly, the bankruptcy court granted the parties fourteen days to correct the
deficiencies.
The district court calculated the fourteen days given Strickland and Roy
Davis to correct their deficient filings as creating a May 25, 2012 deadline to file
these corrected notices of appeal. And if one just counts fourteen days from May
11, then May 25 would appear to be the deadline. Yet, we read Bankruptcy Rule
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9006 as extending the deadline beyond May 25. First, the bankruptcy court’s May
11 order imposed a specific time period in which its recipients, Strickland and Roy
Davis, were required to act. Because the court served that order by mail, “three
days are added after the prescribed period would otherwise expire[.]” Fed. R.
Bankr. P. 9006(f). Thus, if May 25 would be the fourteenth day after issuance of
the order, then Rule 9006(f) added three days to that calculation and extended the
deadline for Strickland and Roy Davis to amend their notice of appeal to May 28.
Second, Rule 9006 provides that a time period specified in a court order
“continues to run until the end of the next day that is not a Saturday, Sunday, or
legal holiday.” Fed. R. Bankr. P. 9006(a)(1)(C). Given operation of the three-day
rule described above, the period for amendment of the original notice of appeal
ended May 28, 2012. But May 28, 2012 was Memorial Day—a legal holiday.
Fed. R. Bankr. P. 9006(a)(6)(A); see 2012 Holiday Schedule, United States Office
of Personnel Management, available at http://www.opm.gov/policy-data-
oversight/snow-dismissal-procedures/federal-holidays/ (last accessed Apr. 15,
2015). Accordingly, Strickland and Roy Davis had until the end of the day on May
29, 2012 to file their amended notices of appeal. Both complied with this deadline,
so the district court erred by concluding that the Roy Davis Notice was untimely,
based on a late filing of his amended notice of appeal.
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B. The District Court Erred in Dismissing Strickland’s Notice
So too did the district court err in its treatment of the Strickland Notices.
Specifically, the court incorrectly concluded it lacked jurisdiction over Strickland’s
appeal because the company submitted its notices of appeal pro se. In the court’s
opinion, “[w]ell-settled law holds that a court lacks jurisdiction over a notice of
appeal filed on behalf of a corporation by someone other than an attorney.” Not
quite.
Insofar as the district court concluded that corporations cannot proceed pro
se but must be represented by counsel, it recited a correct proposition of law.
Indeed, this Court has explicitly stated so. Palazzo v. Gulf Oil Corp., 764 F.2d
1381, 1385 (11th Cir. 1985) (citing Commercial & R.R. Bank of Vicksburg v.
Slocumb, 10 L. Ed. 354 (1840); In re K.M.A., Inc., 652 F.2d 398 (5th Cir. Unit B
1981); and Sw. Exp. Co. v. Interstate Commerce Comm’n, 670 F.2d 53 (5th Cir.
1982)); see also Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council,
506 U.S. 194, 201–02 (1993) (“It has been the law for the better part of two
centuries . . . that a corporation may appear in the federal courts only through
licensed counsel.”) and Nat’l Indep. Theatre Exhibitors, Inc. v. Buena Vista
Distrib. Co., 748 F.2d 602, 609–10 (11th Cir. 1984).
That said, the effect of Strickland’s pro se notice of appeal is unclear. Citing
an unpublished, and therefore non-precedential, case from this Court, Securities &
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Exchange Commission v. Merchant Capital, LLC, 486 Fed. App’x 93, 94 n.1 (11th
Cir. 2012), the district court determined that submission of the Strickland Notices
by non-attorneys deprived it of jurisdiction over the appeals. Yet, Merchant
Capital notwithstanding, our binding precedent instructs that a court facing such a
circumstance should afford a corporation the opportunity to obtain counsel before
dismissing its appeal. 5 See Palazzo, 764 F.2d at 1386 and In re K.M.A., Inc., 652
F.2d at 399. And to the extent that the district court relied on one of our
unpublished opinions as persuasive authority, we note that other unpublished
opinions from within this Circuit go the other direction, and require notice to a
corporation before dismissing its appeal. See Riggins v. Polk Cnty., —Fed.
App’x—, 2015 WL 1037245, at *3 (11th Cir. Mar. 11, 2015); Stirzaker v. Howard,
197 Fed. App’x 852, 853 n.1 (11th Cir. 2006); Fed. Trade Comm’n v. Gem Merch.
Corp., 1995 WL 623168, at *1 (11th Cir. Sept. 1, 1995). Likewise, our sister
circuits also require notice. See, e.g., United States v. Hagerman, 549 F.3d 536,
538 (7th Cir. 2008) (Posner, J.) (“The usual course when a litigant not entitled to
litigate pro se loses its lawyer in the midst of the case is to give it a reasonable
opportunity to find a new one.”); Memon v. Allied Domecq QSR, 385 F.3d 871,
873–74 (5th Cir. 2004) (“In virtually every case in which a district court dismissed
5
To the extent the bankruptcy court’s May 11 order notified Strickland that its notice of
appeal “must be signed and dated by the movant[,]” such did not suffice to put Strickland on
notice that it must be represented by counsel or else suffer dismissal of its appeal.
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the claims (or struck the pleadings) of a corporation that appeared without counsel,
the court expressly warned the corporation that it must retain counsel or formally
ordered it to do so before dismissing the case.”); and United States v. High Country
Broad. Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993) (the same).
Moreover, in light of the Supreme Court’s recent efforts to clarify its
jurisdictional jurisprudence, an argument that a corporation’s faulty submission of
a pro se notice of appeal automatically deprives a court of jurisdiction seems
questionable. See e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc., 134
S. Ct. 1377, 1386–88 (2014) (clarifying the concept of “prudential standing”);
Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 253–54 (2010) (distinguishing
between merits questions and questions of jurisdiction); and Bowles v. Russell, 551
U.S. 205, 215–16 (2007) (Souter, J., dissenting) (“‘Jurisdiction,’ we have warned
several times in the last decade, ‘is a word of many, too many, meanings.’ . . . In
recent years, however, we have tried to clean up our language[.]”) (internal
citations omitted). Indeed, the fact that a court can hold onto a case for whatever
period of time it chooses to permit a corporation to retain counsel suggests that a
pro se notice of appeal filed by a corporation does not, by itself, rob a court of
jurisdiction over the appeal.
In addition, the Supreme Court has stated that “[o]nly Congress may
determine a lower federal court’s subject-matter jurisdiction.” Kontrick v. Ryan,
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540 U.S. 443, 452–56 (2004) (citing U.S. Const., art. III, § 1); see also Bowles, 551
U.S. at 212 (“Congress decides what cases the federal courts have jurisdiction to
consider”) and In re Indu Craft, Inc., 749 F.3d 107, 112–14 (2d Cir. 2014)
(describing the Supreme Court’s recent consideration of jurisdictional rules and
claims-processing rules). Here, the requirement that corporations be represented
by counsel is not a creation of Congress, but is rather a judicial interpretation of 28
U.S.C. § 1654. See Memon, 385 F.3d at 873 n.4 (“[T]he only authority for
dismissing a corporation for failure to retain counsel, absent a court order or local
rule, appears to be based on a judicial interpretation of 28 U.S.C. § 1654.”). It thus
does not implicate a court’s jurisdictional grant from Congress. Put another way,
whether a corporation can proceed pro se in a bankruptcy appeal is a far different
question from whether the district court possesses jurisdiction over that appeal
pursuant to 28 U.S.C. § 158(a). See Morrison, 561 U.S. at 254.
For these reasons, whether the district court possessed the authority to
dismiss Strickland’s appeal under some other authority, such as a claims-
processing rule or its inherent power to manage the cases before it, Strickland’s
pro se notices did not deprive the district court of jurisdiction. In any case, the
court should have first afforded Strickland the opportunity to retain counsel before
dismissing its appeal.
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C. The Court Correctly Dismissed the Appeals as Equitably Moot
However, notwithstanding the timeliness of the Roy Davis Notice and the
notice of the need to retain counsel to which Strickland was entitled, the district
court correctly dismissed the parties’ appeals on grounds of equitable mootness.
“The mootness doctrine, as applied in a bankruptcy proceeding, permits the
court[] to dismiss an appeal based on its lack of power to rescind certain
transactions.” In re Holywell Corp., 911 F.2d 1539, 1543 (11th Cir. 1990),
overruled on other grounds, 503 U.S. 47 (1992). “Central to a finding of mootness
is a determination by an appellate court that it cannot grant effective judicial
relief. . .[T]he court must determine whether the ‘reorganization plan has been so
substantially consummated that effective relief is no longer available.’” In re Club
Assocs., 956 F.2d 1065, 1069 (11th Cir. 1992) (quoting Miami Ctr. Ltd. P’ship v.
Bank of N.Y., 820 F.2d 376, 379 (11th Cir. 1987)).
Substantial consummation, while the most significant consideration for a
court, is not the sole consideration. Equitable mootness “necessarily involves
many subsidiary questions[.]” Id. at 1069 n.11. To wit, in “evaluat[ing] the
ultimate issue of whether a confirmation plan has progressed to the point where
effective judicial relief is no longer a viable option[,]” the reviewing court makes
the following queries:
Has a stay pending appeal been obtained? If not, then why not? . . . If
[the plan has been substantially consummated], what kind of
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transactions have been consummated? What type of relief does the
appellant seek on appeal? What effect would granting relief have on
the interests of third parties not before the court? And, would relief
affect the re-emergence of the debtor as a revitalized entity?
Id.As noted above, the district court provided equitable mootness as an
alternative ground for dismissing the Strickland and Roy Davis Notices. In
arriving at that conclusion the court noted that: (1) “[a]ppellants did not file a
motion for a stay pending appeal of the order approving the Trustee’s Final Report
in the bankruptcy court or in [the district] court”; (2) “[t]he Trustee’s approved
distribution plan in the bankruptcy case has not only been substantially
consummated—it has been fully completed”; (3) “[a]ll of the Trustee’s planned
transfers and distributions were made more than two years ago”; (4) [a]ny relief the
[a]ppellants could receive in [the] appeal would have the effect of frustrating the
orderly Chapter 7 liquidation process” and would result in “further litigation
because the Trustee would [] have to recover the property from Samara”; (5)
appellants’ efforts to overturn the order distributing Roy and Voncile Davis’s cash
and mortgage to Samara have been consistently rejected by federal courts since
2004; and (6) Samara is not a party to the appeal, so it is unclear whether the
district court would be Constitutionally permitted to fashion relief for appellants.
And while discussed as an alternative ground for dismissal independent of
equitable mootness, the district court also noted that the transfer of the Davis’s
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mortgage to Samara had already occurred, and that Samara had already foreclosed
on the property.
For the same reasons, we agree that the parties’ appeals should be dismissed
for equitable mootness. First, and most importantly, the Trustee completed his
liquidation and distribution of Strickland’s estate in 2012 and submitted his
Request for Discharge that August. On this point, the Trustee conveyed to Samara
the mortgage on Roy and Voncile Davis’s property and Samara has completed
foreclosure proceedings. Reversal of the bankruptcy court’s confirmation of the
Trustee’s Final Report would therefore require an undoing of state foreclosure
proceedings and any resulting sales of the property. This would not only alter the
terms of the Trustee’s liquidation and distribution plan, it would gut them entirely.
Even if this Court or the district court below could undertake such actions, they
would lead to inequitable results given the nearly three-year reliance on the
Trustee’s liquidation and distribution of Strickland’s estate by A.M. Samara and
other individuals who were not involved in the proceedings below. See Miami Ctr.
Ltd. P’ship., 838 F.2d at 1553.
Second, appellants neither attempted to nor received a stay of the
confirmation of the Trustee’s Final Report pending this appeal. While they did
move for a stay, pending an interlocutory appeal, they filed this before the
bankruptcy court confirmed the Trustee’s Final Report, and that motion was
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denied. See In re Club Assocs., 956 F.2d at 1069–71 (discussing the importance of
a stay pending appeal) and In re Kahihikolo, 807 F.2d 1540, 1542 (11th Cir. 1987)
(“This court has repeatedly held that where a debtor fails to obtain a stay pending
appeal of an adverse bankruptcy court order and the creditor subsequently conducts
a foreclosure sale, the court of appeals is powerless to grant relief, and the appeal
must be dismissed as moot.”).
And finally, appellants’ briefs on appeal clearly establish that their
opposition to the bankruptcy court’s confirmation of the Trustee’s Final Report
arises from a suspected fraud committed on the district court in the breach of
contract action, and not from a legitimate objection to the Final Report.
Specifically, they claim that A.M. Samara alleged he was a citizen of Egypt but he
is actually (1) a Palestinian national, (2) a “member of Hamas Terrorist Org. and
associated with other Terrorist Org. (Documented C.I.A. Data Base)[,]” and (3) a
“stateless” individual “under [the] [j]urisdiction [of the] P.L.O. [who] must comply
with the ‘Return to Palestine Policy.’” As a Palestinian, appellants claim, A.M.
Samara was “prohibited from owning property, owning small business[es], [and]
owning majority shares in compan[ies], in any Arab League Countries” and
therefore must have formed Samara Consultant Group “solely to defraud and or
extort money from [c]ompanies or people.” Consequently, appellants believe
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A.M. Samara “never had [s]tanding []or [s]ubject [m]atter to file [a] case in U.S.
Court.”
Leaving aside the merit or lack thereof of these allegations, appellants’
arguments constitute a collateral attack on the jurisdiction of the district court in
the breach of contract action. Appellants are attempting to file a belated Rule
60(d) motion under the guise of an appeal. This they cannot do. Such a motion
should have been made before the district court in the breach of contract action. It
cannot be filed in this Court on appeal of the bankruptcy court’s affirmance of the
Trustee’s Final Report: something we earlier told appellants in this very case.
That’s not all: appellants have previously presented their attack on the jurisdiction
of the district court in the breach of contract action to the courts with authority to
adjudicate such claims, and those courts roundly rejected appellants’ arguments.
Thus, for the above reasons, the appeals of the bankruptcy court’s
affirmance of the Trustee’s Final Report are equitably moot and the district court
correctly dismissed them. The opinion of the district court is therefore
AFFIRMED.
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