Najarian Capital, LLC v. Cunningham (In re Cunningham)
Najarian Capital, LLC v. Cunningham (In re Cunningham)
Opinion of the Court
This proceeding was commenced on September 17, 2018, when James D. Cunningham, Defendant herein ("Movant") removed a dispossessory proceeding from DeKalb County Magistrate Court (the "Magistrate Court") to this Court
Movant filed a proposed order on the Default Motion on January 25, 2019, that proposed to grant relief that was inconsistent with prior rulings of this Court and included findings that this Court had jurisdiction over the dispossessory action rather than the Magistrate Court. [Doc. 19]. Additionally, the proposed order granted affirmative relief to Movant and against Plaintiff in the removed action, Najarian Capital, LLC, ("Plaintiff") for: (i) violations of the automatic stay alleged in the coversheet to this proceeding, (ii) "reversal of the foreclosure deed on the property due to 548 fraudulent transfer," (iii) monetary damages of $ 200,000, (iv) a permanent injunction against claims to the property which is the subject of the dispossessory action or against Movant, and (v) a finding that the removal caused all action taken in the state court to be void because the state courts are without jurisdiction. Id. Movant also filed briefs regarding the Default Motion. [Docs. 22, 23, 25].
On February 26, 2018, the Court entered its order denying the Default Motion (the "DJ Order"). [Doc. 32]. On the same day, several hours prior to entry of the DJ Order, Movant filed an Emergency Ex Parte Motion for Temporary Injunctive Relief Pursuant to 28 U.S.C. 1452, 28 USC 1446(d) and 28 U.S.C. 1447(c) (the "Emergency Motion"). [Doc. 30]. In the Emergency Motion, Movant sought entry of an immediate injunction against "all other courts and specifically the Dekalb County Magistrate Court, from acting in 18D55396, pursuant to 28 USC 1452, 28 USC 1446(d) and 28 USC 1447(c)." Id. at 3. More specifically, Movant sought to enjoin a hearing scheduled to be held an hour and one half after the receipt of the Emergency *901Motion
On February 28, 2019, Movant filed a pleading titled FRBP Rules 9023 and 7062 Motion to Amend Order Denying Motion for Default Judgment (the "Motion to Amend DJ Order") [Doc. 35].
On March 1, 2019, at 1:02 p.m. Movant delivered his FRBP Rules 9023 and 7062 Motion to Amend Order And Notice of Emergency Hearing (the "Motion to Amend O & N") [Doc. 38]. In the Motion to Amend O & N, Movant asserts that the Court erred because it scheduled the expedited hearing after the time a hearing was to be held in the Magistrate Court and did not grant Movant an immediate ex parte injunction staying the Magistrate Court hearing. At the rescheduled hearing held on the Emergency Motion on March 1, 2019 (the "Hearing"), the Court addressed the Emergency Motion and the Motion to Amend O & N. [Doc. 48]. The Court entered an order memorializing the hearing and stating that "for the reasons announced on the record" the Emergency Motion [Doc. 30] and the Motion to Amend O & N [Doc. 38] were Denied. [Doc. 40]. Movant then filed "Movant's FRBP Rules 9023 and 7062 Motion To Amend Doc. 40" (the "Motion to Amend Doc. 40"). In the Motion to Amend Doc. 40, Movant argues that the Court gave him time to file a brief in support of the Motion to Amend DJ [Doc. 35] as well as the Emergency Motion and the Motion to Amend O & N.
On March 8, 2019, Movant filed a document titled "Judicial Notice and Stipulation of Fact" [Doc. 43]. In this pleading, Movant states that he is "showing the Court the following indisputable facts:" and then sets forth several statements that the Remand Order is void for various reasons including: staleness, being a fraudulent forgery, lack of service on Movant of a certified copy of the Remand Order, failure to file a certified copy of the Remand Order in this proceeding, this Court is without jurisdiction after the certified copy was filed in the Magistrate Court on March 4 and this Court's later orders are void but the Remand Order is really the void order; that this Court held that the Remand Order became legally enforceable upon being filed in the Magistrate Court *902case which occurred after the hearings in the Magistrate Court held on September 18, 2018 and October 23, 2018; and finally, Movant argues that sending a certified copy of the Remand Order to the Magistrate Court "blindsided Movant" and has caused him to be delayed in filing promised briefs.
In addition to the Motions: (i) to Amend DJ, (ii) to Amend O & N, and (iii) to Amend Doc. 40, Movant also filed Debtor's Collateral Attack and Emergency Ex Parte Motion for Immediate Injunctive Relief (the "Collateral Motion") [Doc. 44] and a brief in support of the Collateral Motion. [Doc. 45]. Each of Movant's Motions to Alter or Amend contain the statement "Brief In Support to Follow" and the Collateral Motion contains the statement "Brief In Support Of All Movant's Pending Pleadings To Immediately Follow On March 15, 2019." [Docs. 41 p. 4; 44 p. 5]. On March 18, 2019, Movant filed a Brief in Partial Support of Movant's Outstanding Pleadings [Doc. 46]. Since March 18, Movant has not filed any other papers, and states at note 1 of docket no. 45 that, "Movant ... will provide teh (sic) Court with the balance of his pleadings on Monday, March 18, 2019." [Doc. 45, p. 1]. Based on the passage of time and footnote 1 in docket number 45 the Court believes Movant has submitted all the briefs he wishes to submit. This Order will address each of the outstanding motions.
Movant's Contentions
In the several motions pending, Movant argues that because the Clerk of the Bankruptcy Court did not send a certified copy of the Remand Order to the Magistrate Court until March 4, 2019, that this Court retained jurisdiction until that time and further that because of the delay in certifying and mailing the Remand Order that order is now stale and void. Movant argues further that because this Court had jurisdiction until at least March 4, 2019, all actions of the Magistrate Court have been taken without jurisdiction and are thus void. Movant seeks an order from this Court enjoining the Magistrate Court from acting in the dispossessory action.
In addition, in the Motion to Amend Doc. 40 filed on March 5, 2019, Movant argues that he did not have sufficient time to prepare to argue that the DJ Order was incorrectly decided, that he was entitled to entry of an ex parte injunction and that the Court erred in not issuing an ex parte injunction as requested in the Emergency Motion when it scheduled the hearing on the Emergency Motion after the time the Magistrate Court was to hold a hearing. Movant states in the Motion to Amend Doc. 40 that "the Court agreed [to give him time to brief each of these points] and made relative oral ruling" so that docket 40 is incorrect because it states that the Emergency Motion and the Motion to Amend O & N were denied. [Doc. 41, p. 2]. Movant argues further that the Court was wrong in its conclusion, at the Hearing, that certification of the Remand Order is a ministerial duty of the clerk and of no effect on the enforceability of the Remand Order and that, in fact, this Court has jurisdiction until such time as the state court receives the certified copy of the remand order. Movant thus concludes that, because the DJ Order does not conclude that this Court had jurisdiction and the Magistrate Court did not, the issues raised in the Motion to Amend DJ, the Emergency Motion and the Motion to Amend O & N are intertwined and the Court must address all three because the Court is *903certain to determine that it had jurisdiction and the DJ Order as well as the statements made at the Hearing are incorrect.
The Collateral Motion
In the Collateral Motion, Movant argues that case law provides that jurisdiction does not become vested in the state court until the certified copy of a remand order is received by the state court such that this Court retained jurisdiction over the dispossessory until at least March 4, 2019. [Doc. 44, p. 3]. In so arguing, Movant identifies four case names. [Doc. 45, p. 2; Doc. 46, p. 3-4]. The first case is Bucy v. Nevada Construction Co. ,
The second case Movant cites is Browning v. Navarro ,
The third case Movant identifies is Federal Deposit Ins. Corp. v. Santiago Plaza ,
Finally, Movant identifies Rosenberg v. GWV Travel, Inc. ,
As noted, the Fifth Circuit does not apply § 1447(c) to remands under § 1452. That being the case it would seem that in the Fifth Circuit jurisdiction transfers back to the state court upon entry of a remand order by a bankruptcy court. It is true that the weight of authority follows the "general rule ... that a district court loses jurisdiction over a case once it has completed the remand order by sending a certified copy of the remand order to the state court."
*905Trans Penn Wax Corp. v. McCandless ,
As was articulated at the Hearing, this judge believes that remand is complete upon entry of the Court's order, a judicial function, rather than upon the completion of the ministerial functions of certification and mailing. See Fed. R. Bankr. P. 5006. Thus, this Court believes the dissent in Bucy and the Fourth Circuit opinion in Lowe represent the correct interpretation of a procedural statute, that is, § 1447(c). This analysis has the additional benefit of being consistent with the Federal Rules of Bankruptcy Procedure for appeals because it is the filing of a notice of appeal-not the clerk's transmission of the notice to the appellate court-that divests a lower court of jurisdiction over the subject matter of the appeal. In re Ocean Warrior, Inc.,
Movant argues that this Court should enjoin the Magistrate Court from acting because it is acting without jurisdiction. Certainly,
*906Here, Movant's main bankruptcy case was dismissed prior to the filing of the dispossessory action in Magistrate Court and prior to removal. [Doc. 32, p. 2]. In addition, prior to dismissal, this Court held that Movant's interest in the property that is the subject of the dispossessory amounted to a mere possessory interest such that there was no property of the estate at issue for the automatic stay (an injunction) to protect. [See Doc. 38, case no. 18-59411]. In this case, an injunction does not carry out the provisions of the Bankruptcy Code as there is no bankruptcy estate to administer and an injunction would not aid this Court's jurisdiction. Finally, issuance of an injunction would undermine the Remand Order rather than protect or effectuate this Court's judgment which was to remand the dispossessory action to the Magistrate Court on October 15, 2018. Consequently, as was stated at the Hearing, Movant's remedy with regard to the Magistrate Court's actions is through the State appellate process, not in federal court. [Doc. 48].
Motions to Alter or Amend
Movant seeks to alter or amend Doc. 40 and the DJ Order pursuant to Federal Rule of Bankruptcy Procedure ("Bankruptcy Rule") 9023, which makes Federal Rule of Civil Procedure ("Rule") 59 applicable to this proceeding. Relief under Bankruptcy Rule 9023 is rare and is granted only upon a showing of "newly-discovered evidence or manifest errors of law or fact." Kellogg v. Schreiber (In re Kellogg) ,
1. Motion to Amend Doc. 40
Movant argues that the Court granted his motion to allow briefing on the Motion to Amend DJ Order. This is correct and the order entered after the Hearing at Doc. 40 does not address the DJ Order. With respect to the Motion to Amend O & N and the Emergency Motion, the Court addressed the reasons why the Emergency Motion was being denied at the Hearing, that is, because it did not comply with Rule 65. [Doc. 48, p. 15-16]. With respect to the Motion to Amend O & N, as the Court explained at the Hearing, because the Emergency Motion did not comply with Rule 65 it could not be granted on an ex parte basis and further, because the Court disagreed with Movant's argument regarding this Court's jurisdiction there was no reason to hold a further hearing on the Emergency Motion. The Court did not grant Movant time to brief the Motion to Alter the O & N. However, in ruling on the Motions, the Court has considered all of Movant's briefs and pleadings and does not find that there is any basis to alter or amend Doc. 40 because the arguments raised by Movant have all been raised previously either in the proposed order on the Default Motion or at the Hearing and have been addressed *907in the DJ Order or at the Hearing
2. Motion To Amend DJ Order
Movant argues that the deficiencies in the Default Motion as identified in the the DJ Order fall into two categories, those that the Clerk should have listed in the Notice of Deficiencies provided to Movant [Doc. 9] and those that the Court is "required to notice the pro se litigant that he did something iimproperly (sic), instruct the litigant on how to correct the mistake(s) and opportunity to do so." [Doc. 46, p. 1]. Movant concludes that " 'lying in wait' to sandbag the pro se litigant with a denial, instead is instead a denial of that litigant's - Movant's - right to due process."
Movant argues further that the Court's ruling is incorrect because unless certification of the Remand Order is completed and received by the Magistrate Court jurisdiction is not revested in the State Court and that this Court has ordered § 1452 to vitiate § 1447(c) rather than allowing them to easily coexist. Finally, Movant indicates that he is unsure how to address the fact that a hearing was held on the Emergency Motion rather than the Court entering an ex parte injunction and the fact that the DJ Order directed the Clerk to issue a certified copy of the Remand Order.
Movant misunderstands the Court's role in this proceeding as well as the Court's obligations to pro se parties. Pleadings filed pro se are liberally construed and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus ,
The Court has extended much latitude to Movant in allowing untimely briefing and duplicative pleadings that do not raise any new grounds for alleging errors by the Court. See [Docs. 19, 43, 44, 45, 46, 47 (all of which include the jurisdictional argument under § 1447(c) ) ]. Further, the Court stated in the DJ Order, at the Hearing and again here what it believes the correct interpretation of the law is with respect to the Remand Order, and any remand order it may issue. As previously *908explained, with respect to the Collateral Motion, the Court disagrees with Movant about the act necessary to re-vest jurisdiction in the state court. Movant's remedy is to appeal this Court, not continue to seek to determine if this judge will change her mind. Brogdon ex. Rel Cline v. Nat'l Healthcare Corp. , 103 F. Supp. 2d at 1338.
With regard to Movant's allegations stating that the Court was "flippant" and was "laying in wait," it appears that Movant believes the Court's role in this proceeding is as an adversary or litigant. [Doc. 46, p. 6-7]. This misconstrues the Court's role, which is to decide disputed factual issues and make determinations based upon the Court's determination of the law as applied to the specific facts before it. Having fully reviewed Movant's arguments, there is nothing asserted that points to newly-discovered evidence or manifest errors of law or fact, rather the motions restate arguments made at the Hearing and previously in this proceeding. There being no basis to alter or amend the O & N or the DJ Order, the motions will be denied. Accordingly, it is now hereby
ORDERED that the Collateral Motion is DENIED. It is further
ORDERED that the Motion to Amend Doc. 40 is DENIED. It is further
ORDERED that the Motion to Amend DJ Order is DENIED.
IT IS ORDERED as set forth below: May 7, 2019
A more detailed procedural history is contained in this Court's Order Denying Default Judgment found at docket no. 32 in this proceeding.
The Emergency Motion was received in the Clerk's Office at 11:26 a.m. on February 26, 2019. The pleading was docketed at 12:30 p.m. the same day.
Counsel for Plaintiff requested that the hearing be continued and heard on March 1, 2019 [Doc. 33] and Movant requested that the hearing be held in the afternoon of March 1. The Court accommodated each of these requests. [Doc. 34].
Movant cites
Reference
- Full Case Name
- IN RE: James Daniel CUNNINGHAM, Debtor. Najarian Capital, LLC, in removed and remanded action v. James D. Cunningham, in removed and remanded action.
- Status
- Published