Meredith v. City of Camden Water & Sewer (In re Smith)

Lamar W. Davis

The Debtors' case was filed on May 21, 2012, and on August 23, 2012, the City of Camden, New Jersey, filed a claim in the case for unpaid water and sewer charges, asserting that the claim was entitled to secured status. Claim No. 12. On January 24, 2013, the Chapter 13 Trustee filed an objection to the claim asserting that it was not entitled to secured status and should be reclassified as an unsecured claim. Dckt. No. 37. The pleadings triggered two matters for consideration by the Court. The first was a determination of the objection itself. The second related to the fact that the claim was filed through conventional means and not in compliance with this Court's mandatory electronic case filing procedures. That failure to comply resulted in a Notice of Non-Compliance with Mandatory Electronic Filing issued by the Clerk to Michelle Banks- Spearman, Assistant City Attorney for the City of Camden ("Counsel"), filed on August 24, 2012. Dckt. No. 30. This notice also included the following statement in bold, underlined text: "Attorneys not admitted to practice in the Southern District of Georgia must first comply with pro hac vice admission requirements prior to seeking permission to file documents conventionally." Id.

On February 25, 2013, Counsel filed a letter brief supporting her contention that the claim was entitled to secured status but made no effort to comply with the mandatory electronic case filing nor to obtain permission to practice pro hac vice. Dckt. No. 39. Again, the Clerk issued a Notice of Non-Compliance with Mandatory Electronic Filing to Counsel. Dckt. No. 40. The Clerk also issued a Notice for Pro Hac Vice Compliance, informing Counsel that she was not authorities to practice in this Court and was obligated under the Court's local rule to obtain permission to proceed pro hac vice. Dckt. No. 41. The matter was set for a hearing on both issues which was conducted on April 29, 2013. There was no appearance by Counsel, and the Court entered the Order sustaining the Trustee's objection, reclassifying Claim number 12 to general unsecured status. Dckt. No. 47.

Upon further review of Counsel's actions disregarding the Court's procedural rules and notices of non-compliance, I now address what actions if any should be taken against Counsel and/or the City of Camden.

Attorneys are responsible for knowing and following the local rules for the courts in which they practice. The local rules and procedures for the U.S. Bankruptcy Court for the Southern District of Georgia are easily found on the Court's homepage under the tabs "Local Rules" and "General Orders." U.S. BANKRUPTCY COURT SOUTHERN DISTRICT OF GEORGIA, http://www.gasb.uscourts.gov/usbc.asp. (last visited Aug. 29, 2013). Moreover, the Clerk promptly notified Counsel in writing of her non-compliance with the electronic filing requirement. This notice gave Counsel fourteen days to cure the noncompliance and also clearly stated the requirement to comply with the Court's pro hac vice admission. Despite this actual knowledge of non-compliance, Counsel again filed a hard copy brief with the court without first applying for pro hac vice status. Counsel's repetitive, defiant actions regarding the Court's rules and procedures after being given an adequate warning and time to cure lead me to the conclusion that some form of a deterrent sanction is needed.

11 U.S.C. § 105(a) states in relevant part, "No provision of this title. . .shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process." Moreover, the Eleventh Circuit held in In re Parker, 485 Fed.Appx. 989,991 (11th Cir. 2012), that "[t]he bankruptcy judge [has] authority to impose sanctions on [the attorney] for violations of the court's procedural rules . . ." While Counsel's actions do not rise to a level considered by Bankruptcy Sanctions Rule 9011, they are clearly a violation of the Court's procedural rules and therefore are sanctionable through the Court's inherent power under § 105(a).

I initially considered disallowing the City of Camden's claim completely as an equitable sanction for Counsel's repeated violations of the Court's procedural rules. However, upon further reflection it is clear that these violations are procedural in nature, falling squarely within the realm of Counsel's responsibility. It would not be fair and just to punish the City of Camden for Counsel's actions.

Pursuant to the foregoing, it is the ORDER of this Court that Counsel is hereby admonished for her actions and ordered to comply with all of the Court's procedural rules in any future actions. She is further directed to address a letter to the undersigned acknowledging the terms of this order and offering an explanation for her conduct. For that communication Counsel is free to communicate via standard United States mail.

______________________

Lamar W. Davis, Jr.

United States Bankruptcy Judge
Dated at Savannah, Georgia
This 16th of September, 2013.