Brooks v. Rosebar

• Decision Date: 29 March 2023
• Docket Number: Adv. Pro. 20-10011-ELG
• Parties: David Brooks, Plaintiff, v. Erin Michelle Rosebar, et al., Defendants.
• Court: United States Bankruptcy Courts. District of Columbia Circuit

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David Brooks, Plaintiff, v. Erin Michelle Rosebar, et al., Defendants.

Adv. Pro. No. 20-10011-ELG

United States Bankruptcy Court, District of Columbia

March 29, 2023

MEMORANDUM OPINION AND ORDER GRANTING RECONSIDERATION

ELIZABETH L. GUNN JUDGE

Before the Court is the fully briefed Motion for Reconsideration (the "Motion for Reconsideration")^[1] filed by defendant Erin Michelle Rosebar (the "Defendant") that asks the Court to reconsider the Memorandum Decision RE [sic] Plaintiff's Request for Default Judgment (the "Opinion")^[2] and related orders entered by the Court on October 20, 2020^[3] in favor of the plaintiff David Brooks (the "Plaintiff").^[4] In addition, before the Court is the Motion to Strike or Disregard Defendant's Post-hearing Brief (the "Motion to Strike")^[5] filed by the Plaintiff as part of the briefing on the Motion for Reconsideration. For the reasons set forth herein, the Court denies the Motion to Strike grants the Defendant's Motion for Reconsideration vacates the Opinion,^[6]Judgment,^[7] and the Order Remanding This Adversary Proceeding to the Superior Court of the District of Columbia Except for the Monetary Claims Against Erin Michelle Rosebar,^[8] and remands the entire case back to the District of Columbia Superior Court for further action.

I. Background

a. Facts Related to the Opinion

The history between the parties, including the briefing and supporting documents related to the Motion for Reconsideration are hundreds of pages covering a multitude of issues between the parties, most of which are not relevant to the question of reconsideration, and which the Court does not endeavor to summarize herein. The facts relevant to the Court's decision on reconsideration of the Opinion are much narrower. As a starting point, the Opinion lays out, in basic terms, that this adversary proceeding originated as a civil defamation case (the "Defamation Claim") filed in the Superior Court of the District of Columbia (the "Superior Court") by the Plaintiff against the Defendant, Michael Rosebar, and Ebonee Price, that was partially removed to this Court on March 26, 2020.^[9] At the time of removal of the Defamation Claim, Ms. Price had been dismissed as a defendant and default had been entered by the Superior Court in May 2016 against the Defendant as a discovery sanction.^[10] There was no default issued as to Mr. Rosebar. As a result of numerous procedural issues in the case, the Plaintiff did not file a Praecipe requesting a hearing for entry of a default judgment against the Defendant as required by D.C. Superior Court Rule of Civil Procedure 55 until September 2019 (the "Praecipe").^[11] The Superior Court scheduled a hearing on the Praecipe on January 10, 2020.^[12]

Four days before the hearing on the Praecipe, on January 6, 2020, the Defendant filed a voluntary petition^[13] under Chapter 13 of the Bankruptcy Code initiating case 20-00006.^[14] The Defendant's chapter 13 filing initially triggered the automatic stay with regard to the Defamation Claim, including the hearing on the Praecipe and the request for entry of a default judgment. However, because the January 2020 case was the Defendant's second bankruptcy case pending within a year,^[15] and under § 362(c)(3)(B), absent further order of the Court, the automatic stay would expire on the 31st day of the case.^[16] The Defendant timely filed a motion to extend the automatic stay (the "Motion to Extend")^[17], which the Plaintiff opposed.^[18] A hearing on the Motion to Extend was held on February 4, 2020, at which point the automatic stay was extended through and including a final hearing to be held on March 3, 2020.^[19] Following the March 3, 2020 hearing, the Court entered an order terminating the stay as to all parties effective March 4, 2020 (the "Stay Termination Order").^[20]

Over three weeks after entry of the Stay Termination Order, the Plaintiff filed his notice of removal (the "Notice of Removal") initiating this adversary proceeding.^[21] Despite the existence of hundreds of pages of pleadings relating to the Defamation Claim in the Superior Court, the Notice of Removal only attached a copy of the Superior Court docket sheet and approximately fifty-eight pages of Plaintiff-selected pleadings.^[22] The Notice of Removal stated that the Defendant was in default as to the Defamation Claim and acknowledged that he "did not understand the difference between a default and a default judgment and therefore did not move for a default judgment."^[23] A status hearing on the Notice of Removal was set for May 28, 2020.^[24] Due to the onset of the COVID-19 pandemic, the Court conducted the status hearing by telephone, at which hearing both the Plaintiff and Defendant appeared pro se.^[25] Following conclusion of the status hearing, the Court entered a minute order continuing the status hearing, establishing a briefing schedule, and setting certain other deadlines. The minute order stated, in relevant part:

Continued [t]o July 9, 2020 at 10:30 a.m. as a scheduling conference and to hear presentation via affidavits of issues regarding default judgment: . . .

2.David Brooks asserts that he is entitled to proceed to presenting evidence to obtain a default judgment, and that Erin Rosebar is restricted regarding the extent to which she can defend. Erin Rosebar seems to dispute that default was appropriate, but that can be addressed by her opposition to be filed to D. Brooks' presentation of evidence.

3.Issue of whether court can grant injunctive relief against Erin Rosebar (an issue of subject matter jurisdiction) will need to be addressed. The parties forthcoming papers (next addressed) can address that or court will address that on its own.

4. In light of the pandemic barring courtroom hearings, Court sets this schedule to attempt to dispose of the default judgment request via affidavits:

a.By June 11, 2020, D. Brooks to file statement of damages and request for injunction (supported by affidavits);

b. By June 25, 2020, Erin Rosebar shall file any opposition (supporting any facts with affidavits).

c. By July 2, 2020, D. Brooks to file any reply.

d. The court will address those filings at the continued hearing on July 9, 2020, at 10:30 a.m.^[26] A further clarifying order was entered on June 5, 2020, which reiterated that the Court would take up the matter at a July 9, 2020 hearing (the "July 9 Hearing").^[27] While each party was permitted

under the Court's affidavit procedure to respond to their opponent's affidavit, there was no procedure established for either party actually cross-examine the opposing affiant through testimony.

On June 11, 2020, Plaintiff filed his Statement of Damages and Request for Injunction by Reason of Default (the "Statement of Damages").^[28] Two weeks later, on June 25, 2020, Defendant simultaneously filed her opposition to the Statement of Damages (the "Opposition")^[29] and a Motion for Summary Judgment (the "Motion for Summary Judgment").^[30] The Plaintiff filed his reply opposition on July 8, 2020 (the "Reply Opposition"), six days late, and the day before the July 9 Hearing.^[31]

At the same time, while the briefing in this adversary proceeding was ongoing, on June 15, 2020, the Court entered an order in the Defendant's chapter 13 case which, inter alia, required the Defendant to file a pleading to show cause why her case should not be dismissed with prejudice for 180 days (the "Show Cause Order").^[32] The Defendant did not file any response to the Show Cause Order. Therefore, on July 8, 2020 the Court signed, and the morning of July 9, 2020- roughly forty-five minutes prior to the scheduled July 9 Hearing in this adversary proceeding- the Court entered an order dismissing the Defendant's chapter 13 case with prejudice for a period of 180 days (the "Dismissal Order").^[33] In the Dismissal Order, the Court acknowledged that the Show Cause Order did not accurately reflect the status of the case as to a pending motion for relief from stay potentially implicating § 109(g).^[34] However, and without further explanation or analysis, the Court went on to state in the Dismissal Order that the inaccuracy in the Show Cause Order did not "alter the propriety of dismissing this case with prejudice for 180 days."^[35] The Dismissal Order further stated, without any legal citation or other analysis that:

[U]nless otherwise ordered in Adversary Proceeding 20-10011, the court retains jurisdiction over that Adversary Proceeding 20-10011, a civil action removed from the Superior Court of the District of Columbia to this court with respect to the claims against the debtor.^[36]

Despite dismissal of the Defendant's chapter 13 case with prejudice just hours prior, the

Court nevertheless conducted the July 9 Hearing related to the removed Defamation Claim to "dispose of the default judgment request via affidavits."^[37] During the July 9 Hearing, and contrary to the scheduling order that only referenced subject matter jurisdiction as to the requested injunctive relief, Judge Teel raised the issue of whether the Court should retain subject matter jurisdiction over the entirety of Defamation Claim as a result of the dismissal of the Defendant's underlying main bankruptcy case.^[38] The hearing continued, without any prior notice or warning, with Judge Teel asking two non-lawyer pro se parties to argue the legal question as to why the Court should or should not retain subject matter jurisdiction over the entirety of the Defamation Claim-both the damages and injunctive portions.^[39]

Unsurprisingly the Plaintiff, who chose to remove this case after the automatic stay was terminated and could have proceeded in Superior Court, argued that "this Court is capable of [ruling] and it could be done quickly and should be done."^[40] The Defendant,...