In re Nucor, Inc., Civ. A. No. 88-K-1407

• Decision Date: 05 April 1990
• Docket Number: 89-K-1105,Bankruptcy No. 88 B 3957 A.,Civ. A. No. 88-K-1407
• Citation: 113 BR 22
• Parties: In re NUCOR, INC., Debtor. NUCOR, INC., Appellant, v. DEUTSCHE CREDIT CORP., et al., Appellees.
• Court: U.S. District Court — District of Colorado

113 B.R. 22 (1990)

In re NUCOR, INC., Debtor.

NUCOR, INC., Appellant, v. DEUTSCHE CREDIT CORP., et al., Appellees.

Civ. A. Nos. 88-K-1407, 89-K-1105, Bankruptcy No. 88 B 3957 A.

United States District Court, D. Colorado.

April 5, 1990.

Bradley P. Pollock, Bell & Pollock, Littleton, Colo., for Nucor Truck; Genuine Parts & Alpine.

Joseph G. Rosania, Denver, Colo., for Rosania.

Herbert A. Delap, Delap & Barry, Denver, Colo., for Deutsche; Intern.

L. Richard Freese, Jr., Davis, Graham & Stubbs, Denver, Colo., for Iveco Trucks.

ORDER ON MOTION TO DISMISS, MOTION TO STRIKE AND MOTION FOR SANCTIONS, AND ORDER CONSOLIDATING ORAL ARGUMENT

KANE, Senior District Judge.

The Deutsche Credit Corporation, Intercontinental Truck Body of Montana, Inc., Genuine Parts Company, and Alpine Research, Inc. (collectively, the creditors) move to dismiss this appeal on the grounds that the debtor, Nucor, Inc., and its attorney, Bradley Pollock, have not complied with applicable bankruptcy rules in prosecuting this appeal. In the alternative, they request that Nucor's opening brief, which discusses issues beyond the scope of the notice of appeal, be stricken. Finally, the creditors argue that sanctions should be assessed against Mr. Pollock for failing to assemble an adequate record, filing an incomplete brief, filing documents out of time and without court consent, and failing to obtain bankruptcy court approval of his representation of the debtor. For the following reasons, I deny the motion to dismiss and grant the motions to strike and for sanctions.

The creditors argue that numerous procedural errors justify dismissal of this appeal and the award of sanctions against Mr. Pollock. In particular, they note that Mr. Pollock did not order a full transcript of the proceedings below. Therefore, the record on appeal is incomplete and the creditors cannot respond to alleged factual misstatements in Nucor's opening brief. They additionally note that certain exhibits introduced at the hearing were not properly designated, and that the designation was filed out of time and improperly amended and refiled. The creditors further point to deficiencies in the brief itself, such as the lack of statements on jurisdiction and the standard of review and argument relating to a separate order on attorney fees from which Nucor did not appeal. Finally, they argue that Mr. Pollock never obtained court approval of his representation of the debtor and that his participation in this appeal is potentially improper.

While failure to follow procedural requirements may result in the dismissal of an appeal, such a drastic measure is inappropriate when the problems result solely from the actions of counsel. Nucor should not be penalized for the carelessness or incompetence of its counsel, especially when sanctions and granting the motion to strike will adequately remedy the errors raised in the creditors' motion. Therefore, I deny the motion to dismiss.

I am convinced, however, that sanctions are appropriate in this case. A review of the record demonstrates that Mr. Pollock has been remiss in prosecuting this appeal nearly every step of the way. His consistency is as amazing as it is appalling. First, Nucor's opening brief was not filed until the creditors moved to dismiss this appeal for lack of prosecution. When the brief was finally filed, it did not comply with the requirements of Bankr.R. 8010. It lacked statements as to appellate jurisdiction and the standard of review, and contained no appendix of relevant statutes or Code provisions. It included argument on issues not properly before the court, as further discussed below. In addition, Mr. Pollock did not file a designation of record within the requisite time period, and he unilaterally amended the untimely designation without court approval. Although he designated the entire record below on appeal, it is still incomplete because Mr. Pollock failed to order a complete transcript of the proceedings conducted on August 18, 1988. Mr. Pollock has failed to take steps to correct this problem since it has been brought to his attention, even though this appeal has been pending for well over a year.¹

What is most troubling about this situation is that Mr. Pollock has not learned from experience. Certainly a few errors in complying with occasionally complex procedural requirements can be anticipated and excused. This, however, is not the first time that Mr. Pollock has been alerted that his performance has been deficient. See Gokey v. McIntosh (In re McIntosh), 89 B.R. 144 (Bankr.D.Colo. 1988) (awarding sanctions against Mr. Pollock for procedural missteps in bankruptcy court), aff'd, 94 B.R. 705 (D.Colo.1988) (affirming the award of sanctions and imposing additional sanctions for counsel's further deficient conduct on appeal).² I find it even more distressing that the type of problems encountered here are the same as those occurring in the McIntosh case, namely the late filing of an opening brief, improper argument of issues not preserved for review, and the late filing and improper amendment of the statement of issues and designation of record on appeal.

Despite Mr. Pollock's attempts to blame his errors on accidental mistakes, computer malfunctions, advice from the bankruptcy court clerk, and opposing counsel's alleged harassment, his conduct to date has been objectively irresponsible. Indeed, it constitutes a serious threat to the system itself.

Because of the demands of federal practice, the volume of documents and case files confronting each judge and the vicissitudes and complexity of federal legislation, a high degree of trust and reliance must be reposed in the members of the federal bar. Other courts, of course, also rely heavily on the trustworthiness and honor of the bar. In this court,

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