In Re: DPH Holdings Corp., No. 1:2011cv08443 - Document 6 (S.D.N.Y. 2012)
Court Description: OPINION & ORDER. The appellant's motion to strike appellee's brief is denied. Upon admission pro hac vice, appellee's counsel shall forthwith make an appearance in this matter, and shall file the appellee's brief electronically pursuant to S.D.N.Y. local rules. (Signed by Judge Paul A. Engelmayer on 1/6/2012) (lmb)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------------)( \JSDC so"y DOCl\H' r EI E< I I{O' ({,-ALLY FILED DO( #: DATE FILED: I " I qI p .... IN RE DPH HOLDINGS CORP., Debtor. ------------------------------------------------------ ------------------: JAMES SUMPTER, 11 Civ. 8443 (PAE) Plaintiff, OPINION & ORDER -v- DPH HOLDINGS CORP., Defendant. ------------------------------------------------------------------------)( PAUL A. ENGELMAYER, District Judge: The Court has received appellant's January 3, 2012 letter alleging that appellee failed to submit a timely and/or proper response brief, as well as appellee's January 5, 2012 letter in response. Both letters (although not the exhibits attached to appellee's letter) are attached here. The Court construes appellant's January 3, 2012 letter as a motion to strike the appellee's brief as untimely and improperly filed. The Court further construes the appellee's January 5, 2012 letter as a timely response to that motion. Apellant's motion to strike appellee's brief is denied. First, appellee's brief is properly submitted. Appellee's counsel has represented to the Court that she has filed a motion to be admitted pro hac vice, and that such motion is currently pending before the Court. Accordingly, counsel for the appellee cannot make an appearance in this matter until counsel is admitted to practice in this District. Responding to these circumstances, appellee requested permission from the Court to permit submission, in the interim period until counsel is admitted pro hac vice, of appellee's brief both on the docket of the underlying bankruptcy case, as well as in hard copy to this Court, which the Court granted. The hard copy ofappeUee's brief, which was sent to this Court by appellee forthwith after the Court granted the appellee's above request, is date-stamped December 22, 2011, one day prior to the filing deadline. Second, appellant fails to allege that appellee's manner of service created any prejudice toward him or his ability to adequately present his appeal to this Court. In fact, appellant makes no claim that his actual receipt of appellee's brief was untimely. For these reasons, the appellant's motion to strike appellee's brief is denied. Upon admission pro hac vice, appellee's counsel shall forthwith make an appearance in this matter, and shall file the appellee's brief electronically pursuant to S.D.N.Y. local rules. fwJ A. f!f6; SO ORDERED. Paul A. Engelmayer United States District Judge Dated: January 6,2012 New York, New York 2 ·21169 Westbay Circle Noblesville, IN 46062 January 3, 2012 The Honorable Paul A Engelmayer, District Judge-SDNY 'The Honorable Henry J. Pitman, Magistrate Judge- SDNY Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 10007·1312 Reprdlng AppeUee'1 failure to submit a timely Respoue Brief In regards to the Reeoupment Appeal (Cue No.-ll-ev-08443-PAE - Docket # 5): Dear Judge Engebnayer and Judge Pitman: I am writing to request that the court issue a ruling that stipulates that the Appellee, DPH Holdings, has failed to submit a timely and/or proper Appeal Response Briefand that for the Recoupment Appeal, the Appellant brief shall be the only brief to be considered. The reasons for this request are as follows: The Appellee brief was due on 23-DEC-2011, but has yet to be docket~ making it more than 10 days late, as of the date of this letter. which is In violation of Fed. R. Bankr. P. 8009-10 and Judge EngellDayer'. Individual PraetieeIJ in Civil Cases, # 4D. It should be noted that the Appellee e-mailed (to the Appellant) a brief purported to be the response brief on 22-DEC-2011(11 :3Opm). It should also be noted that, by chance, the Appellant discovered, what appeared to the Appellee Response Brief on the Delphi bankruptcy docket (docket # 21777). . The Court should also note that the Appellant was improperly served bye-mail. which is in violation of Fed. R. Civ. P. 5 (b) (2) (E). In addition, the Appellee has bad more than ten days to identify and correct any filing error, which would have been apparent if the Appellee bad been monitoring the Appeal Docket. EFC rule 9.1 states: " It remains the duty ofthe Filing User to regularly review the docTret sheet ofthe case. " In reference to Fed. R. Civ. P. 5 (b) (2) (E) and the Appellee "Response Brief'; the brief was e-mailed to the Appellant and is non-compliant, since the Appellant has not indicated in any form (especially in writing) that e-mail service offiled documents was acceptable. · It should also be noted that SDNY- EeF Rule 9.2 requires that for pro ae parties who are not Filing Users (of EFC) shall be served with a paper copy ofany electronically filed pleading or other document. It should also be noted that the briefdocketed on the Delphi docket (#21777 ). which is 14.2 megabytes in size. exceeds, the EFC size maximum of 4 megabytes(SDNY- ECF Rule 23.3). Thus. there is a continuing pattern by the Appellee attorneys ofdisrespecting the Court. Federal rules. and local rules in relation to Civil Procedure. Previous instances ofrule violations are documented in the Appellant Brief (Docket #5). Therefore, I respectfully request that the Court issue a ruling that stipulates that any response briefby the ,Appellee is untimely and/or improper in that it does not conform to established Federal Rules ofCivil Procedure, Federal Rules ofBankruptcy Procedure and Local Rules of the SONY, and is therefore disallowed; and as a result, the Court shall consider the "Recoupment Appeal" based only on the Appellant brief. Sincerely, Dated: Noblesville, Indiana January 3,2012 James B. Sumpter. pro se 21169 Westbay circle Noblesville, IN 46062 Telephone: (317) 877-0736 Facsimile: (317) 877-1070 isump@ieee·01'Q Salaried Retiree ofDebtors -BUTZEL LONG ATTOItNIVI AND eOUNSILOIt' II proleu/onlll corporation Cynlhlil J. Hatrey aiata7.a. h~bulal.com Suite 100 150 Wilt JeIenIon Detroit, MIchIpn 48228 T: 313 m 7000 F: 313 226 7D8O bueal.coln January S, 2012 HAND DELIVERED The Honorable Paul A. Engelmayer The Honorable Henry J. Pitman Daniel Patrick Moynihan U.S. Courthouse SOO Pearl Street New York, NY 10007-1312 Re: Response to AppeUu.t James Sumpter'. January 3, 20ll Letter to the Com ease No. 11-08443 - Sumpter v. DPB Holdtnp Corp. et al. Dear Judge Engelmayer and Judge Pitman: We represent the Appellee, Reorpni7$f Debtors DPH Holdings Corp, et al., in the appeal before this Court from an order of the bankruptcy court. In Appellant James Sumpter's letter dated January 3. 2012, Mr. Sumpter requests that this Court disallow Appellee's brier and decide the pending appeal "based only on the Appellant's brief." As an initial matter, Mr. Sumpter's request is not properly before this Court. Apart from its lack of merit, it is procedurally improper to requeat such a ruling on tho basis of a letter to the Court. Although we strongly object to Mr. Sumpter's method and ask that tho Court deny his request, we nevertheless feel it is necessary to address the assertions in Appellant's letter. Mr. Sumpter a:raues that Appellee's brier should be disJ:egarded because it "has yet to be docketed" in violation of Baukruptcy Rule 8009·10 and Section 4(0) of this Court's Individual Practices in Civil Cases. Mr. Sumpter's assertion is not correct Appellee's brief was filed and docketed one day before due, on December 22, 20II. Further, the brief, along with all exhibits, was contemporaneously sent to Mr. Sumpter via e-mail. (Mr. Sumpter acknowledges in his letter that he received Appellee's brief on December 22nd). It is a matter of record that Appellee's brief was filed and recorded on the main docket of the Southern District of New York Bankruptcy Court, Case No. 05-44481. Mr. Sumpter fUrther acknowledges in his letter that he was aware oftho Bankruptcy docket filing. Appellee's brief was not docketed. on the district court docket because, on the day of the filing. a paralegal at our firm. Alexis Richards, spoke with Your Honor's clerk and several ofthe Ann ArfIor ~0iIIceI lWPt. Bloomfield Hilla DetroIt Sbanthlli MaicoCily LaNI", Man....., H.w -.n: Washington D.C. MemberLa1cAbtc:f _but.l.c:om The Honorable Paul A. Engelmayer The Honorable Henry J. Pitman Janwuy 5, 2012 District Court ECF clerks to inform them. that we were in the process of filing our applications for pro hac vice and obtaining registration and login credentials to e-file with the District Com. Ms. Richards was informed that we should file the appeal brief on the bankruptcy court docket and to send a date-stamped courtesy copy oftbe filing to Your Honor's chambers until the brief could be transfen:ed. to the district court docket See Attadament A, Declaration of Alexis Richards. A date-stamped copy of the appeal brief and exhibits were mailed to chambers on December27,2011. &e Attaebment B, 12127/11 cover letter to ludge Engelmayer with CC: ludge Pitman. As a result, there is no "filing error" as Mr. Sumpter contends. Mr. Sumpter also incorrectly argues that Appellee's brief exceeds the ECF filing size limitations pursuant to SDNY-ECF Rule 23.3. Specifically, Mr. Sumpter argues that the brief is 14.2MB in size which exceeds the 4MB size under the BCF Rule. AccordiDg to ECF Rule 23.3, "[n]o single PDF file may be larger than [4MB]" and that "[iJf the filing is too large, the ECF system will not allow it to be filed ...." This is certainly not the case here wbeJ:c the brief aDd. exhibits were divided into multiple PDF. to accommodate for this rule and none ofthc files were rejected by the BCF system. Further, in making. this argument, Mr. Sumpter again acknowledges that he has accessed the brief via the Bankruptcy docket so he cannot (nor does he) claim any prejudice by the alleged errors listed in his letter. Mr. Sumpter also argues that the appeal brief was improperly served. Yet, Mr. Sumpter also acknowledges that he received Appellee's brief when filed. On the day orfiling, Appellee's brief was e-mailed to Mr. Sumpter at approximately 9:20 PM (not 11:30 PM as Mr. Swnpter argues). &e Attachment C, e-mail to Mr. Swnpter attaching appeal brief and exhibits. Due to the time of the filing and the large amount of exhibits (approximately 1,132 pages long), e-mail was the quickest and most efficient way to timely deliver the brief to Mr. Sumpter on the day of filing. Inadvertently, a copy oftho brief was not served by mail or otherwise, but this resulted in no prejudice to Mr. Sumpter. In fact, at no point in time did Mr. Sumpter contact our office to bring to our attention any deficiency in service. If be had contaeted us, we would have had no problem sending a paper copy to Mr. Sumpter, which we have prepared the same for personal service today to Mr. Sumpter. Unfortunately. Mr. Sumpter instead. decided to wait and write a letter in an effort to persuade this Court that Appellee's brief should be disregarded for technical reasons. Mr. Sumpter admits that he was in receipt of Appellee's e-mail aUachina the brief and exhibits and also admits to 8Ccesaing the brief on the Bankruptey docket. Most impQrtantly, Mr. Sumpter fails to state how this has resulted in any prejudice to him. This is so because he bas not been prejudiced in any way and is in receipt of Appellee's briet 1 See e.g., Tflhman y. AP,2OO5 U.S. Dist. LEXIS 34356 (SONY December 16,2005) (a copy of which is attached as Attaehmeot D). 0;1 C -i N rn r- r lFurthermore. this is not the first time that Appellant received a fding by a-mail only. In fact, Appellee's DesilDation and Amended Designation of Additional Items on Appeal were similarly e-maUed to Mr. Sumpter without objection. 000141814\0003\1318209-1 o z G> page 2 The Honorable Paul A. Engelmayer The Honorable Henry J. Pitman January S, 2012 In Ttshman, the court denied defendants' motion to dismiss based on lack of service of the complaint pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. As stated by the court, "the failure of service is tcclmic.d, and no prejudice to the unserved defendants has been shown or even claimed." Id. at ·4. "[Defendants] manifestly received notice of the action and of the contents of the complaint. Counsel has appeared on their behalf, and brought this motion ... Under the circumstances. no interest ofjustice would be served by dismissi.ng the action.ft Jd. at ·4-5. Likewise, no interest of justice would be served by gnmling Mr. Swnpter·s request that the Appellee's brief be disallowed. where the service error was technical and there was DO prejudice to Mr. Swnpter (actual or claimed). This is true particularly because Mr. Sumpter acknowledges that he was in receipt of the appeal brief, was aware of the Bankruptcy docket filing, and failed to notify counsel of any alleged service error so counsel could have an opportunity to correct it. Based on the foregoing, we respectfully request that this Court disregard Mr. Sumpter's letter and allow the appeal to proceed accordingly. Sincerely, ~.~ Cynthia J. Haffey CJHIrmw Enclosures Cc: James B. Sumpter-via email and U.S. Mail OJ C -f N '"" .- r- o z G) page 3
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