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In re Reed

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

September 1, 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 matter is before the Court on the appeal of Appellant Ross H. Briggs (“Briggs”) of two Bankruptcy Court orders in a Chapter 7 proceeding: (1) a May 4, 2016 Order denying consolidation (“May 4 Order”); and (2) a June 29, 2016 Order reinstating previously-imposed sanctions (“June 29 Order”). ECF No. 1. Also before the Court is Appellant's combined motion and memorandum to disqualify the Honorable Charles E. Rendlen, III, on remand. ECF No. 25. For the following reasons, the Court will deny Briggs's appeal because Briggs is foreclosed from appealing the May 4 Order denying the motion to consolidate. And having failed to appeal the June 29 Order in the seven other bankruptcy proceedings, Briggs's appeal of the June 29 Order is moot. In light of these rulings, the Court will also deny as moot the motion to disqualify.[1]

         BACKGROUND

         The facts giving rise to this appeal are complex, although most are not relevant to the issues now on appeal. Briggs claims he occasionally worked on a contract basis with Critique Services, LLC (“Critique”), a bankruptcy services company.[2] ECF No. 25 at 1-2. In June 2014, Judge Rendlen[3] suspended James Robinson, another attorney associated with Critique, and Briggs assumed representation of Robinson's former clients, including the bankruptcy proceeding brought on behalf of Evette Nicole Reed (“Reed proceeding”). Id. at 5. After a series of issues involving Briggs and Robinson with regard to attorney's fees, Judge Rendlen issued a 250-page order on April 20, 2016 (“April 20 Order”) imposing sanctions on Briggs in the Reed proceeding. The Order was also entered in seven other bankruptcy cases in which Briggs assumed representation from Robinson.[4]

         The sanctions included, inter alia, a suspension from practicing before the Bankruptcy Court in any bankruptcy suits filed after April 20, 2016;[5] a prohibition against using the Bankruptcy Court's electronic filing system; and the requirement that Briggs complete 12 hours of professional ethics CLE.

         Separate Appeal of the April 20 Order Before Judge Ronnie L. White

         On April 28, 2016, Critique filed a motion to consolidate the eight bankruptcy cases, which Judge Rendlen denied on May 4, 2016 (“May 4 Order”). Bankr. ECF No. 151. On that same day, May 4, 2016, Critique and Briggs filed notices of appeal in each of the eight cases in which the Bankruptcy Court entered the April 20 Order. Critique then filed a motion on May 13, 2016, to consolidate the identical appeals in the case bearing the lowest cause number, Case No. 4:16-cv-00633, before Judge White. Judge White granted the motion on May 25, 2016. April 20 Order Appeal, ECF No. 11.[6] On June 7, 2016, Critique filed an amended statement of issues to be presented on appeal to include an appeal from the May 4 Order. April 20 Order Appeal, ECF No. 26; Bankr. ECF No. 194. Briggs did not raise the May 4 Order denying consolidation in his appeal.

         On January 3, 2017, Judge White issued a detailed Memorandum and Order denying the appeals of Briggs and Critique and affirming the April 20 Order. April 20 Order Appeal, ECF No. 57. Specifically, Judge White found that Judge Rendlen had the authority to issue sanctions, that the sanctions were civil in nature, that Briggs received adequate due process, and that the Bankruptcy Court did not abuse its discretion in its factual findings that formed the basis of the sanctions. Judge White also found that the Bankruptcy Court did not abuse its discretion when it entered the May 4 Order denying Critique's motion for consolidation. Briggs appealed Judge White's order, and the matter is currently pending before the Eighth Circuit Court of Appeals. See Ross Briggs v. Hon. Charles Rendlen, Case No. 17-1143 (8th Cir. appeal docketed Jan. 17, 2017).

         Lifting of Sanctions

         Soon after the April 20 Order, Briggs filed in the Reed proceeding two motions for limited relief from the April 20 Order based on his declared intention to be candid regarding his knowledge of Critique and his cooperation with the Missouri Attorney General, who was investigating the activities of Critique. Bankr. ECF Nos. 138 & 139. Judge Rendlen granted the motions on April 28 and May 10, respectively, allowing Briggs to remotely access the Bankruptcy Court's electronic filing system and file new cases on behalf of clients who had retained Briggs prior to April 20, 2016. However, the sanction prohibiting Briggs from filing new cases on behalf of clients who retained Briggs after April 20, 2016, remained in place. Judge Rendlen made it clear that the relief granted in both orders was on an interim basis and that by lifting some of the sanctions, Judge Rendlen was not reconsidering or vacating the April 20 Order.[7]

         Reinstatement of Sanctions

         On June 29, 2016, Briggs filed a new bankruptcy case on behalf of Melody Young (the “Young proceeding”), which was assigned to Chief Bankruptcy Judge Surratt-States. After the case was filed, the clerk's office noticed discrepancies between the attorney signing the petition (Greg Luber) and the use of Briggs's electronic filing passcode. Based on these discrepancies, paired with Briggs's explanation thereof, Judge Rendlen entered an Order (the “June 29 Order”) immediately reinstating the prohibitions on Briggs from remotely using the electronic filing system and from filing any new cases for pre-April 20, 2016 clients, on the terms set forth in the April 20 Order. The June 29 Order was entered in all eight cases. Briggs did not file any motion to consolidate following the issuance of the June 29 Order.

         The Appeal Before This Court

         Briggs now appeals the June 29 Order reinstating sanctions, as well as the May 4 Order denying Critique's motion to consolidate. The Court previously addressed Appellee's motion to dismiss (ECF No. 7) certain issues raised in Briggs's Statement of Issues to be Raised on Appeal (ECF No. 5). The Court granted in part and denied in part that motion to dismiss (ECF No. 18), holding that Briggs was precluded from challenging the jurisdiction or authority of the Bankruptcy Judge to issue the April 20 Order, but permitting Briggs to address the other issues raised in his Opening Brief. The Court will now address the following issues raised by Briggs on appeal:

(1) Judge Rendlen lacked jurisdiction to enter the June 29 Order based on a filing made in a case before Chief Judge Surratt-States;
(2) the June 29 Order, entered sua sponte, violated Briggs's right to due process because he was not provided with notice or an opportunity to respond;
(3) Briggs's notice of appeal filed in this lawsuit is sufficient to appeal the entry of the June 29 Order in all eight cases; and
(4) Judge Rendlen abused his discretion when he denied Critique's motion to consolidate in the May 4 Order, which Briggs has standing to appeal.

         In addition to the aforementioned issues on appeal, Briggs has filed a motion to disqualify Judge Rendlen on remand.

         ARGUMENTS OF THE PARTIES

         Appeal of June 29 and May 4 Orders

         Briggs argues that Judge Rendlen lacked jurisdiction to reinstate sanctions against Briggs because the Young proceeding was before Chief Judge Surratt-States and had nothing to do with the cases to which the April 20 Order applied, and that he was denied due process when Judge Rendlen reinstated the April 20 Order's sanctions without notice of the court's intent to reinstate sanctions and providing an opportunity to respond. Briggs further asserts that the notice of appeal of the June 29 Order filed in the Reed proceeding is sufficient to appeal the entry of the June 29 Order in the other seven bankruptcy cases. With respect to the May 4 Order, Briggs argues that Judge Rendlen abused his discretion when he denied Critique's motion to consolidate in the May 4 Order. Briggs ...


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