RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0131p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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WILLIAM HANCOCK,
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Appellant,
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No. 09-6203
v.
,
>
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DANIEL M. MCDERMOTT; MICHAEL
Appellees. N-
GIGANDET,
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 09-00094—Aleta Arthur Trauger, District Judge.
Argued: December 1, 2010
Decided and Filed: May 18, 2011
Before: BATCHELDER, Chief Judge; ROGERS and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: William Caldwell Hancock, THE HANCOCK LAW FIRM, Nashville,
Tennessee, for Appellant. Michael Gigandet, LAW OFFICE OF MICHAEL
GIGANDET, Pleasant View, Tennessee, Beth Roberts Derrick, OFFICE OF THE
UNITED STATES TRUSTEE, Nashville, Tennessee, for Appellees. ON BRIEF:
William Caldwell Hancock, THE HANCOCK LAW FIRM, Nashville, Tennessee, for
Appellant. Beth Roberts Derrick, Lloyd E. Mueller, OFFICE OF THE UNITED
STATES TRUSTEE, Nashville, Tennessee, for Appellees.
ROGERS, J., delivered the opinion of the court, in which KETHLEDGE, J.,
joined. BATCHELDER, C. J. (p. 6), delivered a separate opinion concurring in the
conclusion.
1
No. 09-6203 Hancock v. McDermott, et al. Page 2
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OPINION
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ROGERS, Circuit Judge. Attorney Hancock appeals from the district court’s
summary affirmance of the bankruptcy court’s denial of his application for fees connected
with a Chapter 11 bankruptcy. Hancock’s repeated failure to comply with the rules for
bankruptcy appeals, however, warranted summary affirmance by the district court without
reaching the merits of his appeal.
Hancock represented Barnhill’s Buffet, Inc. in its Chapter 11 bankruptcy
proceedings from December 2007 through April 2008, when the bankruptcy was
converted to a Chapter 7 proceeding and a trustee was appointed. After Hancock
submitted his final fee application to the bankruptcy court, the U.S. Trustee and the
Chapter 7 trustee asserted five bases for objecting to the application. After a week-long
trial, the bankruptcy court issued an order denying all of Hancock’s fees based on his
failure to comply with disclosure rules, abusive conduct toward others involved in the
case, excessive or incomplete billing, and disruptive behavior. Hancock filed a notice of
appeal with the district court on January 28, 2009.
Under Rule 8009 of the Federal Rules of Bankruptcy Procedure, an appellant is
required to “serve and file a brief within 14 days after entry of the appeal on the docket.”
Pursuant to this rule, Hancock’s original briefing deadline was February 13, 2009.
However, the docket reveals that some delay in receiving transcripts from the bankruptcy
court resulted in the district court’s termination of that deadline. The court set a new
briefing deadline for March 27, 2009, two months after Hancock filed his notice of
appeal. On March 25, 2009, Hancock filed an emergency motion for an extension of time
to file his brief, citing delays in the compilation and transmittal of the record on appeal.
He was granted an extension until April 27, 2009.
Hancock did not comply with the April 27 deadline. On May 1, 2009, Hancock
filed a second request for an extension of time, citing delays in the transcription of one
No. 09-6203 Hancock v. McDermott, et al. Page 3
meeting of Barnhill’s creditors. This motion claimed that Hancock would file his brief
on May 5, 2009, regardless of the status of the delayed transcript. Hancock also
requested permission to file a brief up to but not in excess of 50 pages in length. The
court did not rule on Hancock’s request until May 11, 2009, at which point Hancock had
not filed his promised May 5, 2009 brief. Nonetheless, the district court granted
Hancock’s second motion for extension, although the district court did not specify a new
filing deadline (presumably because Hancock’s motion assured imminent filing).
Hancock did not make any additional filing with the district court throughout May, June,
and July of 2009.
On August 5, 2009, the district court issued Hancock an order to show cause by
August 14, 2009 why the case should not be dismissed for failure to prosecute. Hancock
did not respond to the show cause order and instead filed a brief on August 14, 2009 that
exceeded 100 pages. This brief completely disregarded the 50-page limit for which
Hancock had previously sought special permission and was in excess of the 50-page
maximum permitted under the bankruptcy rules. Fed. R. Bankr. P. 8010.
On August 27, 2009, the trustees moved for the district court to dismiss Hancock’s
appeal or require him to comply with the briefing page limits set in the court’s prior order.
The district court did not dismiss at this date, roughly seven months after Hancock filed
his notice of appeal. However, the court did order Hancock to file a brief under 50 pages
by September 21, 2009, and to submit a third motion for extension of time explaining why
his brief was not timely filed in May 2009. This order warned Hancock that his failure
to comply in a timely and complete manner might result in the dismissal of his appeal.
Hancock next filed two documents with the court on September 22, 2009, one day
after the court’s deadline. Hancock filed a brief that, through the excessive use of roman
numerals for introductory pages, was arguably 50 pages in length. However, the brief
was printed in a small font and was almost entirely single-spaced, in clear violation of
local filing requirements. M.D. Tenn. R. 7.03(a) (requiring all documents filed with the
court to be double-spaced). As to the explanation for the delay, Hancock asserted that he
had personal reasons that he could only discuss in chambers; that he had required
No. 09-6203 Hancock v. McDermott, et al. Page 4
extensive time (from May 1 to August 14) to reduce his original brief from 220 to 158
pages; that he had been awaiting a Supreme Court decision in a case involving judicial
recusal; that because Judge Trauger had previously permitted Bankruptcy Judge Lundin
to make an unfair ruling against Hancock, Judge Trauger would feel compelled to defend
that prior decision in this case, as Bankruptcy Judge Paine had “copycatted” Judge
Lundin’s earlier opinion; that Hancock realized he had no hope of a favorable resolution
at the district court level because Judge Trauger would not have the “extraordinary
courage” to find that Bankruptcy Judge Paine had violated Hancock’s constitutional
rights; and that there was no point in investing more hours into the district court brief
because any ruling would be appealed and the Sixth Circuit reviews only the findings of
the bankruptcy judge.
On September 23, 2009, the district court entered an order noting Hancock’s
“repeated failure” to comply with the filing requirements of Rule 8009 of the Federal
Rules of Bankruptcy Procedure and stating that the course of events in the case fully
justified “dismissal of this appeal with prejudice.” Under Bankruptcy Rule 8001, a
district court has discretion to dismiss a bankruptcy appeal where an appellant has failed
to take a required step in the appeal. Fed. R. Bankr. P. 8001(a). The Middle District of
Tennessee, however, has promulgated a local rule that provides: “Failure by an appellant
to comply with the provisions of either Rule 8006, 8007 or 8009 of the Bankruptcy Rules,
Title 11 of the United States Code Annotated, will result in summary affirmance of the
opinion of the Bankruptcy Judge.” M.D. Tenn. R. 81.01(a). The district court stated that
instead of dismissing the appeal, it chose “to invoke Local Rule 81.01(a) to summarily
affirm [the bankruptcy court’s] Order, fully expecting [Hancock] to appeal further to the
Sixth Circuit Court of Appeals, where he might receive a decision on the merits.”
We understand the district court’s order as making clear that this court could reach
the merits of Hancock’s appeal if we disagreed with the district court’s conclusion that
Hancock’s repeated failure to comply with the appeal rules warranted summary
affirmance. However, we fully agree that summary affirmance without consideration of
the merits was appropriate in this case, because “a clear record of delay or contumacious
No. 09-6203 Hancock v. McDermott, et al. Page 5
conduct by the plaintiff exists and a lesser sanction would not better serve the interests
of justice.” Consolidation Coal Co. v. Gooding, 703 F.2d 230, 233 (6th Cir. 1983)
(internal quotations and citations omitted).
Hancock did not file any brief in the district court until nearly seven months after
he filed his notice of appeal, and that brief completely disregarded the district court’s
filing requirements and the bankruptcy rules. Hancock also ignored the district court’s
first order to show cause, and then responded to its second order with a series of
disrespectful remarks and other entirely unacceptable explanations for his delay. Further,
the district court demonstrated considerable leniency throughout the proceedings, giving
Hancock the opportunity to make a proper filing and show cause as late as September of
2009. See id. (affirming a dismissal with prejudice where petitioner had received “more
than ample leeway in which to conform its actions to the Board’s requirements”). The
district court’s summary affirmance was therefore not motivated by a failure of technical
compliance, but rather by a pattern of flagrant noncompliance. Summary affirmance
without consideration of the merits was fully warranted under such circumstances. See
Thomas v. Corr. Med. Ctr., No. 98-3492, 1999 WL 283894, at *1 (6th Cir. Apr. 27,
1999).
Appellants cannot leapfrog the district court in bankruptcy appeals by blatantly
ignoring the rules and procedures for appeal from bankruptcy court to district court. Such
an intermediate appeal is required by statute. District court (or Bankruptcy Appellate
Panel) review serves the valuable purposes of refining issues and conserving judicial
resources. Permitting parties to skip it would undermine the bankruptcy appellate
process.1 We therefore affirm the district court’s summary affirmance.
1
While this court has stated that it reviews the bankruptcy court judgment rather than the
intermediate district court judgment in such appeals, e.g., McMillan v. LTV Steel, Inc., 555 F.3d 218, 225
(6th Cir. 2009), this means that any deference owed by us (such as clearly erroneous review of factual
determinations) extends to the bankruptcy court rather than to the intermediate district court. Such
statements do not mean that intermediate review is some kind of discretionary option that parties can
disregard or skip over.
No. 09-6203 Hancock v. McDermott, et al. Page 6
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CONCURRING IN THE CONCLUSION
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ALICE M. BATCHELDER, Chief Judge, concurring. I fully agree with the
majority’s conclusion that the appellant’s flagrant noncompliance with the district court’s
rules gave the district court ample justification to dispose of the case without addressing
the merits. I write separately to clarify an important distinction between a summary
affirmance and a summary dismissal. On several occasions, the majority refers to the
district court’s “summary affirmance without consideration of the merits,” or some
variation thereof. However, the plain meaning of the term “summary affirmance” implies
that the merits were considered and gives this court an opportunity to review the merits.
Indeed, the district court anticipated that we would review the merits of the case. Because
we have not reviewed the merits of the case, it would be more appropriate to acknowledge
that we are, in fact, construing the district court’s order as a dismissal rather than an
affirmance, and that we are affirming the dismissal because it was justified by the
appellant’s noncompliance with the district court’s rules.