Spookyworld, Inc. v. Town of Berlin

United States Court of Appeals
For the First Circuit

No. 03-1315
IN RE: SPOOKYWORLD, INC.,

Debtor.
__________

SPOOKYWORLD, INC.,

Plaintiff, Appellant,

v.

TOWN OF BERLIN, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Chief Judge,
Baldock,* Senior Circuit Judge,
and Howard, Circuit Judge.

Stephen Gordon with whom Stephen Gordon & Associates was on
brief for appellant.
Peter J. Camp with whom Adam J. Brand and Brand & Associates
were on brief for appellees.

September 25, 2003

*
Of the Tenth Circuit, sitting by designation.
 BOUDIN, Chief Judge. This appeal concerns efforts by the

Town of Berlin to bring certain attractions owned by appellant

Spookyworld, Inc. ("Spookyworld"), into compliance with the

Massachusetts Building Code. 780 C.M.R (passim) (6th ed. 1997).

Spookyworld was created in 1991 by sole shareholders David and

Linda Bertolino. The corporation built a horror theme park in

Berlin, Massachusetts, on land leased from a trust controlled by

the Bertolinos. The park celebrated Halloween, opening every year

only for the month of October.

From modest beginnings, Spookyworld's business grew

quickly: in 1997, it grossed $1,880,000, and by 1998, it was

employing approximately 500 people during its annual month of

operation. In 1998 the park contained three buildings housing a

total of five attractions: a barn, which included a haunted house

and a "celebrity area" on the main floor and a haunted "mine shaft"

in the basement; a "museum display"; and a metal building

containing a 3-D wax museum.

On September 30, 1998, the building inspector for the

Town of Berlin, Lawrence Brandt, issued three certificates of

inspection to Spookyworld, one for each building. Shortly

thereafter, on October 7, Brandt sent a letter to David Bertolino

rescinding the certificate covering the haunted house and the

haunted mine shaft. According to Brandt, recent amendments to the

Massachusetts Building Code required that these two attractions

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have sprinkler systems installed. 780 C.M.R. § 413.4 (6th ed.

1997).1

Because of Brandt's actions, Spookyworld faced the

prospect of having to close two of its principal draws for the

duration of the critical month of October. Spookyworld therefore

immediately appealed Brandt's decision to the building code appeals

board under Mass. Gen. Laws, ch. 143, § 100 (West 2002). Under

that provision, Spookyworld's appeal had the effect of staying all

enforcement proceedings against it, unless state or local officials

could present evidence that the stay would "involve imminent peril

of life or property." Id.; see also 780 C.M.R. § 122.3.3 (6th ed.

1997).

Spookyworld then began negotiations with town officials,

attempting to work out an interim solution whereby the haunted

house and the haunted mine shaft could continue to operate through

October without shutting down for sprinkler installation. Duncan

Baum, the town's assistant fire chief, and Gene Novak, a regional

building inspector, participated in the negotiations. Among the

options discussed was a "fire watch," which would have involved

1
Defendants say in their brief that there were multiple
problems with all three buildings and that Brandt withdrew the
certificates for all of them. Nevertheless, the principal dispute
between the parties relates to the haunted house and haunted mine
shaft and to the question whether these two attractions required
sprinkler systems.

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Spookyworld's paying the town to station fire personnel at the park

during its hours of operation.

The negotiations ultimately broke down, and on October

16, 1998, the town filed a complaint against Spookyworld in

Worcester Superior Court. The complaint sought a temporary

restraining order, shutting down the haunted house and the haunted

mine shaft until such time as sprinkler systems could be installed

in each; the complaint also sought a fine for each day of non-

compliance. The court issued the temporary restraining order later

that day.

One hour after the order issued, Spookyworld filed a

chapter 11 petition under the Bankruptcy Code and sought to

continue operating both attractions by virtue of the automatic stay

provided by the statute. 11 U.S.C. § 362(a) (2000). The very next

day, however, Spookyworld was forced to shut down the attractions

when town officials came to the park and threatened to arrest

Spookyworld employees for non-compliance with the court order.

In response, Spookyworld filed an adversary complaint in

bankruptcy court, seeking a preliminary injunction to halt the

state court proceedings and prevent any action on the part of the

town to close park facilities. At an emergency hearing held before

the bankruptcy court on October 20, 1998, counsel for the town

claimed that continued operation of the two facilities in question

posed an immediate danger to the safety of the park's customers.

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The town's counsel also represented that the town's actions enjoyed

the support of the highest public safety officials of the state.

The bankruptcy court refused to grant Spookyworld's requested

injunction, citing the police power exception to the automatic

stay. 11 U.S.C. § 362(b)(4) (2000).

Shortly thereafter the Worcester Superior Court held a

hearing on the continuation of the town's temporary restraining

order. Counsel for the town made representations at this hearing

similar to the ones he had made before the bankruptcy court. After

the hearing, the court converted the temporary restraining order

into a preliminary injunction. The haunted house and the haunted

mine shaft remained closed for the rest of October 1998.

On February 9, 1999, Spookyworld filed an amended

adversary complaint in bankruptcy court. The amended complaint

alleged that the Town of Berlin and various of its officials had

willfully violated the automatic stay. The amended complaint also

contained a section 1983 claim, 42 U.S.C. § 1983 (2000), a section

1985 claim, id. § 1985, and several state law claims including

libel, slander, interference with contractual relationships, and

violations of Mass. Gen. Laws, ch. 12, § 11H-I (West 2002). In due

course, defendants moved for summary judgment on all claims.

On August 2, 2001, the bankruptcy court ruled that

Spookyworld's automatic stay claim was a core bankruptcy claim and

that all of Spookyworld's other claims were non-core claims. In re

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Spookyworld, 266 B.R. 1, 6-11 (Bankr. D. Mass. 2001). The

bankruptcy court granted defendants' motion for summary judgment

with respect to the automatic stay claim, 28 U.S.C. § 157(b)(1)

(2000); and, as to the rest of Spookyworld's claims, framed

proposed findings of fact and conclusions of law recommending the

grant of summary judgment in favor of defendants. 28 U.S.C. §

157(c)(1) (2000); Spookyworld, 266 B.R. at 11-20.

Spookyworld filed a timely appeal to the district court

challenging the bankruptcy court's grant of summary judgment on the

core automatic stay claim. Possibly the notice could be read also

to embrace a challenge to the bankruptcy court's proposed findings

of fact and conclusions of law with regard to the non-core claims.

If the latter was intended, use of an appeal was a procedural

misstep; the proposed findings and conclusions were not a judgment

subject to "appeal" but recommendations to the district court. The

correct, and required, course was to file "specific objections" to

those recommendations that were disputed by Spookyworld. 28 U.S.C.

§ 157(c)(1) (2000); Fed. R. Bank. P. 9033.

On December 19, 2001, no specific objections to the

recommendations having been filed within the time provided, the

district court adopted the bankruptcy court's proposed findings of

fact and conclusions of law; accordingly, the district court, by

order dated the same day, granted judgment to the defendants on the

non-core claims. Whether Spookyworld was immediately aware of the

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December 19 actions is unclear, but at no point did it seek to

reopen this judgment based on lack of notice.

The appeal as to the core claims was more protracted.

Over a year later and after briefing by both sides the district

court on January 23, 2003, issued a memorandum and order affirming

(on grounds described below) the bankruptcy court's grant of

summary judgment to defendants on Spookyworld's core automatic stay

claim. The district court then dismissed Spookyworld's appeal on

January 24, 2003. Spookyworld's district court brief also attacked

the recommendations on the non-core claims but the district court

noted that those had already been disposed of by the December 19,

2001, judgment. Spookyworld filed a notice of appeal to this court

on February 21, 2003.

In this court, Spookyworld contests both the district

court order of December 19, 2001, entering judgment for the

defendants on the non-core claims (the "non-core order") and the

memorandum and order of January 23, 2003, affirming the bankruptcy

court's disposition of the core automatic stay claim (the "core

order"). At the threshold, defendants say that Spookyworld's

notice of appeal does not encompass the non-core order, and that

therefore we lack power to consider it on the merits. Fed. R. App.

P. 3(c); Smith v. Barry, 502 U.S. 244, 248 (1992) ("Rule 3's

dictates are jurisdictional in nature . . . .").

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 Fed. R. App. P. 3(c)(1)(B) states: "The notice of appeal

must designate the judgment, order, or part thereof being

appealed." The requirements of Rule 3 are liberally construed,

Barry, 502 U.S. at 248, and "[a] mistake in designating a judgment

. . . in the notice of appeal ordinarily will not result in loss of

the appeal as long as the intent to appeal a specific judgment can

be fairly inferred from the notice and appellee is not misled by

the mistake." Kelly v. United States, 789 F.2d 94, 96 n.3 (1st

Cir. 1986). But Rule 3 must still be satisfied, and "noncompliance

is fatal to an appeal." Barry, 502 U.S. at 248; Torres v. Oakland

Scavenger Co., 487 U.S. 312, 317 n.3 (1988).

Spookyworld's notice of appeal to this court says in its

entirety:

[Now comes] the Appellant Spookyworld, Inc.
and appeals the Order of Dismissal of the
District Court dated 1/23/03 affirming the
decision of the Bankruptcy Court which
allowed the Motion of Defendants, Town of
Berlin, et al for Summary Judgment.

This language refers only to the order resolving the core claim,2

and this is not sufficient to inform either defendants or the court

of Spookyworld's intent to appeal the non-core order. Barry, 502

U.S. at 248. Accordingly, we do not reach the questions whether

2
The district court's own core order does mention the non-core
order but only to say it previously resolved the non-core claims;
a "passing allusion" to a previous order in the order designated by
the notice of appeal is not enough to incorporate the previous
order into the notice. See Kotler v. Am. Tobacco Co., 981 F.2d 7,
12 (1st Cir. 1992).

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defendants were prejudiced or whether an appeal from the non-core

order issued over a year before the notice of appeal was filed

would have been timely. Fed. R. App. P. 6(a); Fed. R. App. P.

4(a)(1)(A).

Occasionally, an opening brief has been treated as a

notice of appeal, and Spookyworld's brief in this court does

contest the disposition of the non-core order. But Spookyworld's

opening brief was not filed until May 20, 2003, which is well after

the 30 days for filing a notice of appeal, Fed. R. App. P.

4(a)(1)(A), from the core order (issued on January 23, 2003), and

over a year after the non-core order (issued on December 19, 2001).

Barry, 502 U.S. at 249 (appellate court may treat a filing "styled

as a brief as a notice of appeal," but only "if the filing is

timely under Rule 4 and conveys the information required by Rule

3(c)").

This brings us to the bankruptcy court's grant of summary

judgment to defendants on Spookyworld's core automatic stay claim

which we review de novo, In re Varrasso, 37 F.3d 760, 762-63 (1st

Cir. 1994), construing the record in the light most favorable to

Spookyworld as the non-moving party. Triangle Trading Co. v.

Robroy Indus., 200 F.3d 1, 2 (1st Cir. 1999); Varrasso, 37 F.3d at

763. We must affirm if "no genuine issue of material fact exists,

and [defendants have] successfully demonstrated an entitlement to

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judgment as a matter of law." Fed. R. Civ. P. 56(c); Fed. R.

Bankr. P. 7056; Varrasso, 37 F.3d at 763.

Spookyworld argues that defendants' actions, including

the continued prosecution of the state court case after Spookyworld

filed its chapter 11 proceeding, constitute a willful violation of

the automatic stay, entitling it to damages under section 362(h).

The bankruptcy court ruled that these actions rested on the town's

police or regulatory power and so were exempt from the automatic

stay under section 362(b)(4). Spookyworld, 266 B.R. at 17-20. The

district court affirmed but on a different ground: it held that

corporations cannot take advantage of section 362(h)'s right of

action because the provision only authorizes suits brought by

"individual[s]."

In our view both courts were right. We conclude that

Spookyworld, because it is a corporation, cannot bring suit under

section 362(h), and that even if it could, defendants' actions are

within the police power exception to the automatic stay. We also

reject Spookyworld's alternative argument that the bankruptcy court

should have sanctioned defendants according to its contempt powers

under 11 U.S.C. § 105(a) (2000). These three issues are considered

in turn.

Section 362(a) of the Bankruptcy Code, imposing the

automatic stay, applies generally to proceedings against "the

debtor." By contrast, section 362(h) says: "An individual injured

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by any willful violation of a stay provided by this section shall

recover actual damages, including costs and attorneys' fees, and,

in appropriate circumstances, may recover punitive damages."

Defendants argue that the term "individual" means that corporations

are not authorized to collect damages under section 362.

There is currently a circuit split. Two circuits hold

that the term "individual" includes corporations, and four circuits

hold that it does not.3 Every district court in this circuit to

consider the issue has endorsed the majority view, as has the

circuit's Bankruptcy Appellate Panel.4 Analysis starts, as usual,

with the statutory language, United States v. Ron Pair Enters., 489

U.S. 235, 241-42 (1989), although bare words would not license a

result "demonstrably at odds" with legislative intent. Id. at 242

(quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571

(1982)).

The Bankruptcy Code does not define "individual," but

several provisions indicate that the term was not meant to include

3
Compare In re Atlantic Bus. and Cmty. Corp., 901 F.2d 325,
328-29 (3d Cir. 1990), and Budget Serv. Co. v. Better Homes of Va.,
Inc., 804 F.2d 289, 292 (4th Cir. 1986), with In re Just Brakes
Corp. Sys., 108 F.3d 881, 884-85 (8th Cir. 1997), In re Jove Eng'g,
Inc. 92 F.3d 1539, 1549-53 (11th Cir. 1996), Goodman v. Knight, 991
F.2d 613, 618-20 (9th Cir. 1993), and In re Chateaugay Corp., 920
F.2d 183, 184-87 (2d Cir. 1990).
4
See In re American Chem. Works Co., 235 B.R. 216, 220-21
(D.R.I. 1999); In re A & J Auto Sales, Inc., 223 B.R. 839, 844-45
(D.N.H. 1998); In re Shape, Inc., 135 B.R. 707, 708 (D. Me. 1992);
In re Turabo Motors Co., BAP No. PR 01-035, 2002 Bankr. Lexis 1278,
*32-*34 (B.A.P. 1st Cir. Oct. 21, 2002).

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corporations. For example, the code defines "person" to include

"individual[s], partnership[s], and corporation[s]." 11 U.S.C. §

101(41) (2000) (emphasis added). In addition, "corporation" is

defined to include an "association having a power or privilege that

a private corporation, but not an individual or a partnership

possesses." Id. § 101(9)(A)(i) (emphasis added). See also In re

Jove Eng'g, Inc. 92 F.3d 1539, 1551 & n.11 (11th Cir. 1996) (citing

additional examples); In re Chateaugay Corp., 920 F.2d 183, 185-86

(2d Cir. 1990) (same).

It may at first be surprising that Congress would want to

withhold the benefits of 362(h) from corporations, but this

decision is not "demonstrably at odds" with legislative intent.

Section 362(h) was enacted as part of the "'Consumer Credit

Amendments,' which contain[ed] numerous additions to the code

relating only to 'individuals.'" Chateaugay, 920 F.2d at 186

(citing Bankruptcy Amendments and Federal Judgship Act of 1984,

Pub. L. No. 98-353, Title III--Amendments to Title 11 of the United

States Code, Subtitle A--Consumer Credit Amendments, § 304, 98

Stat. 333, 352 (1984)).

Corporations are not wholly without remedy for violations

of the automatic stay: under 11 U.S.C. § 105(a) (2000), "[t]he

court may issue any order, process, or judgment that is necessary

or appropriate to carry out the provisions of this title." Prior

to the enactment of section 362(h) in 1984, contempt orders issued

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under section 105(a), including awards of damages, were routinely

used to punish violations of the automatic stay. See In re

Crysen/Montenay Energy Co., 902 F.2d 1098, 1104 (2d Cir. 1990); In

re A & J Auto Sales, Inc., 223 B.R. 839, 844-45 (D.N.H. 1998).

After enactment of section 362(h), corporations (and

other non-"individual[s]") remain free to petition bankruptcy

courts to award damages for automatic stay violations pursuant to

their section 105(a) power. See, e.g., Chateaugay, 920 F.2d at

186-87. A discretionary remedy is not as good as one that is

assured, see Goodman v. Knight, 991 F.2d 613, 620-21 (9th Cir.

1993), but Congress could easily have thought that corporations

needed less protection. As the Second Circuit explains:

After Congress in 1978 passed the automatic
stay provisions of § 362 along with the rest
of the code, including § 105(a) . . ., it is
entirely possible that Congress then chose to
expand the remedies for violations one step at
a time. Congress may well have thought that
individual debtors were particularly
vulnerable to violations of the stay by debt-
collection agencies and others who may be
tempted to believe that individuals are less
likely than corporations to be aware of their
rights under the automatic stay.

Chateaugay, 920 F.2d at 186.

In sum, we agree with the Second, Eighth, Ninth, and

Eleventh Circuits, and with the district courts and the BAP in this

circuit, and hold that corporations cannot sue under section 362(h)

to obtain damages for violation of the automatic stay. Statutory

language so suggests and neither legislative history nor policy

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concerns point the other way. It is well to have this issue

settled in this circuit at least until the Supreme Court addresses

the matter--which might take some time if other circuits follow the

plurality view.

Spookyworld argues that, so construed, section 362(h)

denies equal protection under the Fifth Amendment to closely held

corporations, like itself, that have only a few shareholders. But

when drawing distinctions that do not involve fundamental rights or

suspect classes, Congress need only have a rational basis for its

decisions, United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 175-

76 (1980). There is nothing irrational in drawing economic-

regulation lines between individuals and corporations, closely held

or otherwise; indeed, the Internal Revenue Code is rife with such

distinctions.

Even if corporations could sue, we would still affirm the

bankruptcy court's grant of summary judgment on the merits.

Ordinarily, bankruptcy automatically stays lawsuits in other courts

against the debtor, see, e.g., ICC v. Holmes Transp., Inc., 931

F.2d 984, 987-88 (1st Cir. 1991), but this is subject to the so-

called police power exception. Section 362(b)(4) says:

The filing of a [chapter 11] petition . . .
does not operate as a stay . . . of the
commencement or continuation of an action or
proceeding by a governmental unit . . . to
enforce such governmental unit's . . . police
or regulatory power.

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11 U.S.C. § 362(b)(4) (2000). The town is a "governmental unit"

within the meaning of 362(b)(4). Cournoyer v. Town of Lincoln, 790

F.2d 971, 975 (1st Cir. 1986).

Spookyworld says that this section does not apply because

the defendants' actions were undertaken in bad faith. According to

Spookyworld, the defendants in securing the temporary restraining

order from the Worcester Superior Court deliberately exaggerated

the dangers of operating the haunted house and the haunted mine

shaft without sprinklers, the severity of any alleged building code

violations, and the degree to which state public safety officials

supported their decision to take legal action.

Spookyworld also says that when it sought protection

under chapter 11, the town similarly misled the bankruptcy court

in convincing it not to enjoin the state court action. It claims

that the defendants again misrepresented the situation when they

convinced the Worcester Superior Court, post-petition, to convert

its temporary restraining order into a preliminary injunction. It

says that the record demonstrates these false statements or, at the

very least, that their falsity involves factual issues barring the

district court's grant of summary judgment.

For clarity's sake, Spookyworld's argument should be

distinguished from a related, but here inapplicable, limitation on

the use of the police power exception to the automatic stay. Under

the case law, the exception does not apply if the government takes

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legal action to advance its own "pecuniary" interest (or perhaps

the pecuniary interest of others); but it does apply if the

government acts in the interest of "public safety and welfare."

E.g., In re Universal Life Church, 128 F.3d 1294, 1297-98 (9th Cir.

1997); see also Chao v. Hosp. Staffing Servs., Inc., 270 F.3d 374,

385-89 (6th Cir. 2001).

The Massachusetts Building Code is plainly aimed at

protecting the public, and Spookyworld does not say otherwise. In

adopting the police power exception to the automatic stay, Congress

explained that "where a governmental unit is suing a debtor to

prevent or stop violation of fraud, environmental protection,

consumer protection, safety, or similar police or regulatory laws

. . . the action or proceeding is not stayed under the automatic

stay." S. Rep. No. 95-989, at 52 (1978). Accord, Cournoyer, 790

F.2d at 975-77 (enforcement of zoning regulation within police

power exception).

Admittedly, there is some authority for the proposition

that government actions undertaken in bad faith are not exempt from

the automatic stay. See In re Nat'l Hosp. and Institutional

Builders Co., 658 F.2d 39, 43-44 (2d Cir. 1981) (under the old

Bankruptcy Act which had no built-in police power exception); In re

Beker Indus. Corp., 57 B.R. 611, 627 (Bankr. S.D.N.Y. 1986).

However, National Hospital was arguably undermined, if not

overruled, by Board of Governors v. MCorp Financial, Inc., 502 U.S.

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32, 40 (1991), which held that bankruptcy courts should not inquire

into the "legitimacy" of ongoing administrative enforcement

proceedings in determining whether the police power exception

applies to them.5

We are doubtful whether a bad faith exception should be

read into section 362(b)(4) where the state directive being

enforced is directed at ordinary public purposes. There is much

force to the dissent of Judge Mansfield in National Hospital:

[A bad faith] exception would result in
Bankruptcy Court mini-trials of purely state
regulatory issues whenever, as might be
expected to happen frequently, the debtor
sought by claiming 'bad faith' to have those
issues tried in a Bankruptcy Court, which
would be sympathetic toward any resolution
that would improve the estate, rather than
before state tribunals. The proper remedy is
to seek redress in the state courts which may
be expected not to tolerate bad faith conduct
. . . .

National Hospital, 658 F.2d at 46. By contrast, the pecuniary

purpose exception need present no such dangers. Cf. Safety-Kleen,

Inc. v. Wyche, 274 F.3d 846, 865 (4th Cir. 2001) (pecuniary purpose

test looks only to the objective purpose of the underlying law

sought to be enforced).

5
See In re Javens, 107 F.3d 359, 365-67 & n. 6 (6th Cir. 1997)
(finding that National Hospital's analysis did not survive MCorp).
After MCorp, the Sixth Circuit concluded that bankruptcy courts
retain the power to enjoin bad faith exercises of police or
regulatory power (presumably under section 105(a)), but this was
not a claim that the automatic stay operated in such a case. Id.
at 366-67 & n. 7.

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 Of course, one can imagine some fairly appealing cases

for a bad faith exception; suppose that incontrovertible proof was

available that the town's lawyer had brought a wholly baseless

injunction action against Spookyworld motivated by personal malice.

Yet such an injunction could easily be overturned by offering the

same evidence to the state court; and state remedies exist for

malicious prosecution. Thus, the case for a bad faith exception

seems thin; but, even if such an exception existed--which we need

not definitively decide--it would not extend to this case.

On summary judgment we are bound to assume that

Spookyworld could prove that defendants exaggerated the seriousness

of the building code violations, but this is a far cry from showing

that the defendants brought the state action for ulterior motives

or that they did not believe in the basic genuineness of their

case. Lawyers constantly overstate their claims. In a robust

adversary system, courts offer lawyers a measure of latitude.

If misstatements and exaggeration in the state court were

enough to defeat the automatic stay, the bankruptcy courts would be

relitigating state enforcement actions every day. The game is not

worth the candle. It is well to remember that section 362(b)(4)

embodies a fundamental judgment of Congress: that protecting the

public welfare and safety trumps the concerns that underlie the

automatic stay, a provision whose main purpose is to prevent some

private creditors from gaining priority on other creditors. See,

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e.g., Mann v. Chase Manhattan Mortgage Corp., 316 F.3d 1, 3 (1st

Cir. 2003).

There are penalties enough, formal as well as informal,

for lawyers and other officials who make false factual statements

to courts. Indeed, Spookyworld itself argues in the alternative

that the bankruptcy court should have awarded it damages under

section 105(a). As noted earlier, bankruptcy courts do possess the

discretionary authority to award damages for automatic stay

violations as part of their power to "issue any order . . . that is

necessary or appropriate to carry out the provisions of this

title." 11 U.S.C. § 105(a) (2000); Chateaugay, 920 F.2d at 186-87.

This alternative claim for damages is waived because

Spookyworld did not make it before the district court. See Daigle

v. Me. Med. Ctr., Inc., 14 F.3d 684, 687 (1st Cir. 1994). In any

event, the decision whether to award such damages is discretionary.

Goodman, 991 F.2d at 620. On this record, there is nothing that

would make it an abuse of discretion to refuse to award damages

under the contempt power.

Affirmed.

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