United States District Court, District of Columbia
In re SHARRA NEVES CARVALHO, Debtor.
SHARRA NEVES CARVALHO, Appellee. TEODORA AURELIANA SIMU, Appellant,
B. WALTON UNITED STATES DISTRICT JUDGE.
December 15, 2015, Sharra Neves Carvalho filed a Chapter 7
voluntary bankruptcy petition in the United States Bankruptcy
Court for the District of Columbia (the “Bankruptcy
Court”). See Voluntary Petition for
Individuals Filing for Bankruptcy, In re Carvalho,
Ch. 7 No. 15-646 (Bankr. D.D.C. Dec. 15, 2015), ECF No. 1. On
July 28, 2017, Teodora Aureliana Simu, a creditor of
Carvalho, requested that the Bankruptcy Court remove Bryan S.
Ross as the trustee of Carvalho's estate (the
“Removal Request”), and sought leave to sue Ross
(the “Leave to Sue Request”). See
generally Unified Motion to Dismiss Bankruptcy Case for
Bad Faith[, ] Motion to Remove Estate Trustee[, ] Motion for
Leave to Sue the Estate Trustee (“Unified
Motion”), In re Carvalho, Ch. 7 No. 15-646
(Bankr. D.D.C. July 28, 2017), ECF No. 131. On November 29,
2017, the Bankruptcy Court denied Simu's Removal Request
as well as her Leave to Sue Request. See In re
Carvalho, 578 B.R. 1, 14 (Bankr. D.D.C. 2017).
Thereafter, Simu appealed the Bankruptcy Court's denial
of both requests. See Notice of Appeal (Jan. 16,
2018). Currently pending before the Court are Ross's
Motion [to] Dismiss Appeal (“Ross's Mot. to
Dismiss”), and Simu's Motion for Sanctions
(“Simu's Mot. for Sanctions”). Upon careful
consideration of the parties' submissions,  the Court
concludes that it must grant in part and deny in part
Ross's motion to dismiss and deny Simu's motion for
August 11, 2017, Simu filed her brief in support of her
appeal of the Bankruptcy Court's denial of her Removal
Request and Leave to Sue Request, arguing that the
“Bankruptcy Court erred in not finding that [Ross] made
bright line violations of the Bankruptcy Code[, ] which
mandated his removal.” Simu's Appeal Brief at 3.
Specifically, Simu argues that the Bankruptcy Court
“should have removed [Ross] and granted [Simu] leave to
sue [Ross]” because Ross “eschewed his duties to
the Bankruptcy Court and to [Carvalho's e]state.”
Id. at 29-30. Simu further argues that Ross's
“conduct demonstrates [that he] acted outside the scope
of his authority and breached his fiduciary duty to preserve
and liquidate [Carvalho's e]state.” Id. at
30. Thereafter, Ross filed his motion to dismiss Simu's
appeal. See generally Ross's Mot. to Dismiss.
After the briefing of the motion to dismiss was completed,
Simu filed her motion for sanctions against Ross. See
generally Simu's Mot. for Sanctions. These last two
filings are the subject of this memorandum opinion.
STANDARD OF REVIEW
U.S.C. § 158 governs appeals from the bankruptcy courts
to federal district courts. Section 158(a) provides that
district courts have jurisdiction over appeals
(1) from final judgments, orders, and decrees; (2) from
interlocutory orders and decrees issued under section 1121(d)
of title 11 increasing or reducing the time periods referred
to in section 1121 of such title; and (3) with leave of the
court, from other interlocutory orders and decrees[.]
28 U.S.C. § 158(a) (2018). Section 158 also provides
that “[a]n appeal under subsection (a) . . . of this
section shall be taken in the same manner as appeals in civil
proceedings generally are taken to the courts of appeals from
the district courts.” Id. § 158(c)(2).
Motion to Dismiss
28 U.S.C. § 158 nor Federal Rule of Bankruptcy Procedure
8013, which governs motions filed in bankruptcy appeals,
addresses motions to dismiss a bankruptcy appeal,
see 28 U.S.C. § 158; Fed.R.Bankr.P. 8013, and
despite diligently searching, the Court has been unable to
locate any cases in the District of Columbia Circuit that
have set forth the standard of review for a motion to dismiss
a bankruptcy appeal. Therefore, because a district court,
pursuant to 28 U.S.C. § 158(c)(2), acts as an appellate
court when reviewing decisions made by a bankruptcy court,
see In re St. Charles Pres. Inv'rs, Ltd., 112
B.R. 469, 471 n.2 (D.D.C. 1990); see also In re
Sollins, Civ. Action No. 95-0657, 1996 WL 61773, at *2
n.15 (D.D.C. Feb. 6, 1996), aff'd sub nom. Ross v.
1301 Connecticut Ave. Assocs., 99 F.3d 444 (D.C. Cir.
1996), the Court will follow this Circuit's practice with
respect to motions to dismiss appeals. This Circuit construes
motions to dismiss appeals as motions for summary affirmance,
see, e.g., Solomon v. Supreme Court of
Fla., No. 03-7002, 2003 WL 1873939, at *1 (D.C. Cir.
Apr. 2, 2003), and has held that “[a] party seeking
summary disposition bears the heavy burden of establishing
that the merits of his case are so clear that expedited
action is justified, ” Taxpayers Watchdog, Inc. v.
Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). Thus, to
summarily affirm a district court's order, the Circuit
“must conclude that no benefit will be gained from
further briefing and argument of the issues presented.”
Id. at 298. Further, in reviewing a motion to
dismiss an appeal or a motion for summary affirmance, the
Circuit “view[s] the record and the inferences to be
drawn therefrom ‘in the light most favorable to [the
non-moving party].'” Id. (quoting
United States v. Diebold, 369 U.S. 654, 655 (1962)).
this standard of review, the Court concludes that Ross's
motion to dismiss must be granted with respect to Simu's
Removal Request because the merits of the parties'
positions “are so clear that expedited action is
justified.” Taxpayers, 819 F.2d at 297;
see Montague v. Conti Mortg. Co., Civ. Action No.
00-7103, 2000 WL 1225784, at *1 (D.C. Cir. July 31, 2000)
(granting a motion to dismiss a bankruptcy appeal due to
mootness). Ross's motion to dismiss the appeal with
respect to the Leave to Sue Request, on the other hand, must
be denied because the Court would “benefit . . . from
further briefing and argument of the issues presented.”
Taxpayers, 819 F.2d at 298.
argues that this appeal should be dismissed as to the Removal
Request because “it is no longer possible to grant
[Simu] effective relief, ” Ross's Mot. to Dismiss
¶ 4 (citations omitted). Specifically, Ross argues that,
“[s]ince the perfection of the instant appeal, the
Bankruptcy Court . . . closed (and reopened for a limited
purpose) the underlying bankruptcy case of the Debtor, and
discharged the Trustee.” Id. ¶ 2. Ross
therefore contends that, “[i]nasmuch as [Simu's]
Removal Request sought only to replace the Trustee ...