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In re Reed

United States District Court, E.D. Missouri, Eastern Division

March 15, 2017

In re EVETTE NICOLE REED, Debtor,
v.
HON. CHARLES E. RENDLEN III, Appellee. ROSS H. BRIGGS, Appellant,

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This case is before the Court on the appeal of Appellant Ross H. Briggs (“Briggs”) of two Orders entered by the Bankruptcy Court in a Chapter 7 proceeding on June 29, 2016, and May 4, 2016. ECF No. 1.[1] Currently before the Court is the Motion to Dismiss Appeal filed by Appellee,[2] primarily asserting that the appeal raises the same issues as, and is duplicative of, an earlier appeal between the same parties. Briggs has filed an opposition to the motion, and Appellee has filed a reply. On request of Appellee, the Court has stayed further briefing on the appeal until a ruling on the motion to dismiss is issued. ECF No. 15.

         BACKGROUND

         The proceedings leading up to the orders from which Briggs appeals are somewhat complicated, and will not be detailed here. Further detail may be found in the January 3, 2017 Memorandum and Order entered by the Hon. Ronnie L. White, In re Evette Nicole Reed, No. 4:16CV633 RLW, 2017 WL 44645 (E.D. Mo. Jan. 3, 2017). For purposes of this motion, what is important is that in June 2014, Judge Charles E. Rendlen, III, suspended attorneys James Robinson and Elbert Walton, Jr., from the Bankruptcy Court, related to representation they provided through Critique Services LLC (“Critique”). Thereafter, Briggs volunteered to provide representation to some of Robinson’s clients, and he also represented debtors in other cases pending before Judge Rendlen.

         On April 20, 2016, after protracted proceedings,[3] including several show cause orders, Judge Rendlen issued a Judgment and Memorandum Opinion (the “April 20 Contempt Order”) finding Briggs, Robinson, and Critique to be in contempt of Court for failing to comply with an Order Compelling Turnover. Judge Rendlen also found that Briggs had deliberately made certain misleading representations. As material to the instant motion, the April 20 Contempt Order imposed numerous sanctions, including the suspension of Briggs from using the Bankruptcy Court’s electronic filing system (“CM-ECF”) and from practicing before the Bankruptcy Court for six months, until October 15, 2016. Briggs was also prohibited from soliciting new clients and from filing new cases in the Bankruptcy Court, but was allowed to continue to represent clients he had of record as of April 20, 2016. The identical order was filed in eight separate bankruptcy cases, including the instant case, In re Evette Nicole Reed, Case No. 14-44818-705. On April 28, 2016, Critique and its owner filed a Motion to Consolidate the eight cases, which Judge Rendlen denied in an Order dated May 4, 2016 (the “May 4 Order”).

         Appeal Before Judge White

         Briggs and Critique each filed notices of appeal to the District Court in the eight cases. Briggs thereafter filed a motion to consolidate the eight appeals, and on May 25, 2016, Judge White granted the motion and consolidated the eight pending appeals. In re Evette Nicole Reed, Case No. 4:16CV00633 RLW, ECF Nos. 5, 11.

         In his Amended Statement of the Issues to be Presented on Appeal before Judge White, Briggs argued that (1) the Bankruptcy Court lacked authority under Article III of the United States Constitution to enter a final order of sanctions, and at most had jurisdiction to enter proposed findings and conclusions for de novo review by the District Court; (2) the Bankruptcy Court lacked authority to suspend Briggs from practicing before the court, and that Judge Rendlen’s sua sponte suspension violated Briggs’ due process rights and right of equal protection; and (3) the sanctions imposed were not supported by clear and convincing competent evidence. Id., ECF No. 8. Critique asserted similar issues regarding the authority and jurisdiction of Judge Rendlen to enter the sanctions, and also argued that Judge Rendlen abused his discretion in denying the motion to consolidate the eight Chapter 7 bankruptcy cases. Briggs did not join in the motion to consolidate filed in the bankruptcy court, and from this Court’s review of the case file, he did not challenge the May 4 Order denying the motion to consolidate in either his Amended Statement of the Issues to be Presented on Appeal or in his appellate brief.

         On January 3, 2017, Judge White issued a detailed Memorandum and Order denying the appeals of Briggs and Critique and affirming the April 20 Contempt Order. In re Evette Nicole Reed, Case No. 4:16CV633 RLW, 2017 WL 44645 (E.D. Mo. Jan. 3, 2017). Judge White also found that Critique had failed to demonstrate that the Bankruptcy Court abused its discretion in entering the May 4 Order denying consolidation. Id. at *7.

         Reinstatement of Sanctions

         Meanwhile, based on motions Briggs filed in the bankruptcy court regarding his intent to be candid regarding his knowledge of Critique, and his cooperation and information he thereafter provided to the Missouri Attorney General, Judge Rendlen on May 10, 2016, modified Briggs’ suspension to permit Briggs (i) to file new cases for any client he had agreed to represent prior to April 20, 2016 but whose case had not yet been filed; and (ii) to remotely use the Court’s CM-ECF filing system.

         On June 29, 2016, a bankruptcy action was filed on behalf of Melody Young, and assigned to Judge Surratt-States. In Re Melody Young, Case No. 16-44624. Based on discrepancies between the attorney signing the petition (Greg Luber) and the use of Briggs’ CM-ECF passcode, and the explanation allegedly provided by Briggs, Judge Rendlen entered an Order (the “June 29 Order”) immediately reinstating the prohibition on Briggs remotely using the CM-ECF system and the prohibition on Briggs filing any new cases for pre-April 20, 2016 clients, on the terms set forth in the April 20 Contempt Order.

         The Appeal Before This Court

         On July 13, 2016, Briggs filed a notice of appeal in Case No. 14-44818-705, appealing from the June 29 Order reinstating the prohibitions, and the May 4 Order denying the motion to consolidate. ECF No. 1. In his July 28, 2016 Appellant’s Statement of Issues ...


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