United States District Court, D. Maine
ORDER DISMISSING BANKRUPTCY APPEAL
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
that the bankruptcy court acted within its discretion when it
dismissed a debtor's Chapter 11 filing for failure to
file required documents and finding her other claims of error
non-meritorious, the Court denies a debtor's appeal of
January 28, 2016, Beverly Ann Lavigne filed a pro se petition
under chapter 11 of the Bankruptcy Code with the United
States Bankruptcy Court for the District of Maine.
Voluntary Petition for Individuals Filing for
Bankruptcy (Bankr. No. 1). This was her third bankruptcy
case in thirteen months. See In re Beverly A.
Lavigne, Bankr. D. Me. No. 14-20953; In re Beverly
A. Lavigne, Bankr. D. Me. No. 15-20491. Ms. Lavigne did
not file any of the documents required by statute and the
Rules of Bankruptcy Procedure. On January 28, 2016, the
Bankruptcy Judge ordered Ms. Lavigne to file certain
documents by February 4, 2016 and February 11, 2016, warning
her that if she did not file the other documents or a motion
to extend the deadline, her case would be dismissed.
Order to Comply with Bankr. Rs. 1007 and Notice of Intent
to Dismiss Case (Bankr. No. 8). On February 5, 2016,
after Ms. Lavigne failed to file the documents by the
February 4 deadline, the Bankruptcy Judge dismissed her case.
Order Dismissing Chapter 11 Case (Bankr. No. 13).
February 17, 2016, Beverly Ann Lavigne filed with this Court
an appeal of the Bankruptcy Court order. Notice of Appeal
and Statement of Election (ECF No. 1). Having been
pending for over two years, this case is now one of the
oldest cases on this Court's docket. As the Court
described in its March 5, 2018 order, the primary reason for
the unusual delay has been Ms. Lavigne's repetitive
filing of interlocutory appeals to the Court of Appeals for
the First Circuit. Second Bankr. Appeal Procedural
Order at 1-3 (ECF No. 57). Bankruptcy Rule 8018 required
Ms. Lavigne to file a brief and an appendix within thirty
days after the docketing of notice that the record had been
transmitted or is available electronically. The docket
reflects that the record was available to Ms. Lavigne on
February 17, 2016, the day Ms. Lavigne filed her appeal in
this Court, Bankr. Appeal (ECF No. 1) (“the
record on appeal is available at
ecf.meb.uscourts.gov”), and the Bankruptcy Court issued
its Certificate of Readiness on May 11, 2016. Bankr.
Certificate of Readiness (ECF No. 20).
March 5, 2018 procedural order, the Court ordered Ms. Lavigne
to file her appellate brief and appendix no later than April
26, 2018. Second Bankr. Appeal Procedural Order at
2. On March 30, 2018, Ms. Lavigne moved to extend the time
within which to file her appellate brief and appendix.
Mot. to Extend Time to File Appellant Br. (ECF No.
58). On April 3, 2018, the Court granted her motion to extend
“with extreme reluctance” to May 28, 2018.
Order Granting Mot. to Extend Time (ECF No. 59). On
May 29, 2018, Ms. Lavigne filed what she called a pre-brief.
Pre-Br. of Beverly Lavigne (ECF No. 60). On June 29,
2018, she filed a motion to amend her pre-brief.
Amendment to Amend Errors and Correct Pre-Br. and Form
Attached to Req. for Hr'g and Disc. (ECF No. 63).
Following that motion, the Court issued a scheduling order in
which it ordered the Appellees to file their briefs by July
17, 2018, and Ms. Lavigne to file her reply by July 24, 2018.
Scheduling Order on Pending Mots. (ECF No. 64). The
Court also ordered the Appellees to file their responses to
the motion to amend by July 17, 2018 and Ms. Lavigne to file
her reply by July 24, 2018. Id. On July 17, 2018,
Vivian Savage, party-in-interest, filed her memorandum in
opposition to Ms. Lavigne's pending motions. Mem. in
Opp'n (ECF No. 67). Also on July 17, 2018, the
United States Trustee filed his amicus brief. Br. of
William K. Harrington (ECF No. 68). On July 24, 2018,
Ms. Lavigne filed her reply brief. Reply Br. (ECF
Bankruptcy Judge's decision to dismiss a case is reviewed
for an abuse of discretion. See In re Gonic Realty
Tr., 909 F.2d 624, 626 (1st Cir. 1990). Under the abuse
of discretion standard “such action cannot be set aside
by a reviewing court unless it has a definite and firm
conviction that the court below committed a clear error of
judgment in the conclusion it reached upon a weighing of the
relevant factors.” Schubert v. Nissan Motor Corp.
in U.S.A, 148 F.3d 25, 30 (1st Cir. 1998) (quoting
In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954),
disapproved of on other grounds by In re Union Leader
Corp., 292 F.2d 381 (1st Cir. 1961). The Court must
“keep in mind that under abuse of discretion review,
[it] [is] ‘not to substitute [its] judgment for that of
the [bankruptcy court].” Id. (quoting
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
debtor is automatically required to file certain documents
within fourteen days of filing a petition, including a list
of their twenty largest creditors, schedules of their assets
and liabilities, and in this district, a formatted matrix
listing creditors and their telephone numbers. 11 U.S.C.
§ 521(a)(1); Fed.R.Bankr.P. 1007(b), (d); D. Me. L.
Bankr. R. 1007-2. “Pursuant to § 1112(b)(4)(F), an
‘unexcused failure to satisfy timely any filing or
reporting requirement established by [the Bankruptcy Code] or
by any rule applicable to a case under [chapter 11]' is
cause for conversion or dismissal of a chapter 11
case.” Andover Covered Bridge, LLC, 553 B.R.
162, 172 (B.A.P. 1st Cir. 2016) (modifications in original).
“Numerous courts have held that § 1112(b)(1) also
permits a bankruptcy court to dismiss a chapter 11 case, sua
sponte, for cause.” In re Colon Martinez, 472
B.R. 137, 144 (B.A.P. 1st Cir. 2012).
1112 requires “notice and a hearing, ” but in the
bankruptcy context that phrase is defined flexibly to mean
such notice and such opportunity for a hearing “as is
appropriate in the particular circumstances.” 11 U.S.C.
A dismissal without notice and an opportunity to be heard
would not be appropriate where substantive issues are to be
determined, but if a case involves only very narrow
procedural aspects, a court can dismiss a . . . case without
further notice and a hearing if the debtor was provided with
notice of the requirements to be met. Thus, a procedure is
perfectly appropriate that notifies the debtor of the
deficiencies of his petition and dismisses the case sua
sponte without further notice and a hearing when the debtor
fails to file the required forms within a deadline.
In re Tennant, 318 B.R. 860, 870-71 (B.A.P. 9th Cir.
2004) (internal quotations and citations omitted).
Lavigne failed to comply with the rules and statutory filing
requirements and then failed to rectify her error when
ordered to do so with notice that it would result in
dismissal. Ms. Lavigne also had ample notice because her
prior bankruptcy cases in the preceding year were dismissed
for the very same reason. In those circumstances, the
Bankruptcy Judge did not abuse his discretion in dismissing
Court declines Ms. Lavigne's request (1) for a hearing,
(2) for oral argument before this Court or a Grand Jury, (3)
for discovery, and (4) for a stay while those first three
requests are pending, because the issues she raises are far
beyond the scope of this Court's review on appeal from
the decision of the Bankruptcy Judge, which presents narrow
issues that do not justify discovery, oral argument, or a
hearing. See Pre-Br. of Beverly Lavigne at 3, 4 (ECF
No. 60); Mot. for Stay Awaiting Discovery, Mot. for Show
Cause Hearing for Proof of Claim (ECF No. 62);
Amendment to Amend Errors and Correct Pre-Brief and Form
Attached to Req. for Hr'g on Disc. (ECF No. ...