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APPELLANT’S INITIAL BRIEF AND
INCORPORATED MEMORANDUM
OF LAW IN SUPPORT OF APPEAL
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES…………………………………………………..…4
STATEMENT OF JURISDICTION…………………………………………..…6
CERTIFICATION OF INTERESTED PARTIES…………………………..……8
CORPORATE DISCLOSURE STATEMENT………………………………..…8
STATEMENT REGARDING ORAL ARGUMENT……………………………10
ENUMERATION OF ERRORS…………………………………………………11
1. Error No. 1
The Bankruptcy Court Failed to Provide Thakkar with Basic Due Process
During the February 17, 2022 Hearing on Thakkar’s Three Motions
Properly Noticed for Hearing and Exhibited Clear Bias Against Thakkar
in the Manner that Relief was Granted to the Claimants Compared to
Summarily Denying Thakkar’s Motions
2. Error No. 2
The Bankruptcy Court Abused its Discretion in its February 17, 2022
Rulings on Thakkar’s Pretrial Motions in Failing to Recognize the
Appearance of Bias by Summarily Granting Claimants’ Motion in Limine
and Summarily Rejecting Thakkar’s Motion in Limine—both Motions
Being Significant Pretrial Determinations that Subsequently Governed
the Presentation of Trial Evidence
3. Error No. 3
The Bankruptcy Court Erred as a Matter of Law and Abused its
Discretion in Summarily Denying Thakkar’s Three Pretrial Motions, All
of Which Resulted in Conducting the Trial on Claim 3 in an Unfair and
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Arbitrary Manner and Contrary to Thakkar’s Rights to Adequate
Discovery and the Presentation of Defense Testimony from his Listed
Trial Witnesses
STATEMENT OF FACTS…………………………………………….…………12
STANDARD OF REVIEW………………………………………………………22
ARGUMENT……………………………………………………….…………….22
CONCLUSION AND RELIEF REQUESTED…………………………………..36
CERTIFICATE OF COMPLIANCE……………………………….…………….38
CERTIFICATE OF SERVICE……………………………………….…………..39
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TABLE OF AUTHORITIES
Cases
Page
Bakst v. Wetzel (In re Kingsley), 518 F.3d 874, 877 (11th Cir. 2008)…………22
Coe v. Armour Fertilizer Works, 237 U.S. 413 (1915)………………………...29
Chudasama v. Mazda Motor Corp., 123 F.3d 1353,
1366-67 (11th Cir. 1997)……………………………………………………….33
Cooke v. United States, 267 U.S. 517, 536 (1925)……………………………..29
Ellison v. Ford Motor Co., 847 F.2d 297, 300-01 (6th Cir. 1988)……………..33
Endicott Johnson Corp. v. Encyclopedia Press, 266 U.S. 285 (1924)…………33
Frazier v. Wells Fargo Bank, N.A., 541 F. App'x 419, 5 (5th Cir. 2013)………29
Genesco, Inc. v. Dep't of Environmental Quality, 250 Mich. App. 45, 56, 645
N.W.2d 319 (2002)……………………………………………………………..28
Great Lakes Consortium v. State, File No. 5:06-CV-187, at *8
(W.D. Mich. Dec. 29, 2006)……………………………………………………28
Grun v. Pneumo Abex Corp., 163 F.3d 411, 423 (7th Cir. 1998)………………28
In re School Asbestos Litig., 977 F.2d 764, 792-93 (3d Cir. 1992)…………….33
In re Adams Estate, 257 Mich. App. 230, 233-234, 667 N.W.2d 904 (2003).….28
In re Oliver, 333 U.S. 257, 273 (1948)………………………………………….28
Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 164-65 (1951)………29
McDonnell Douglas Corp. v. Poling, 429 F.2d 30, 31 (3d Cir. 1970)………….34
Ownbey v. Morgan, 256 U.S. 94 (1921)………………………………………..29
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Palko v. Connecticut, 302 U.S. 319, 327 (1937)………………………………..28
Reynolds v. Servisfirst Bank (In re Stanford),
17 F.4th 116, 121 (11th Cir. 2021)………………………………………………22
Sipes v. Atl. Gulf Cmtys. Corp. (In re General Dev. Corp.),
84 F.3d 1364, 1367 (11th Cir.1996)……………………………………………..28
Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc.,
38 F.3d 1414, 1418 (5th Cir. 1994)………………………………………………28
United Mine Workers of Am. Combined Benefit Fund v. Toffel
(In re Walter Energy, Inc.), 911 F.3d 1121, 1135 (11th Cir. 2018)……………...22
United States v. McCutcheon, 86 F.3d 187, 190 (11th Cir. 1996)………………..33
Statutes
28 U.S.C. § 158(c)(3)…………………………………………………………..….6
Court Rules
Rule 8004 of the Federal Rules of Bankruptcy Procedure……………………..…6
Rule 8019 of the Federal Rules of Bankruptcy Procedure…………………….…10
Local Rule 9013-1 of the U.S. Bankruptcy Court for the
Northern District of Georgia……………………………………………………..36
Local Rule 2002-4 of the U.S. Bankruptcy Court for the
Northern District of Georgia………………………………………………….….36
Rule 37 of the Federal Rules of Civil Procedure………………………….………8
Rule 52(c) of the Federal Rules of Civil Procedure……………………………….7
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STATEMENT OF JURISDICTION 1
On March 3, 2022, Appellant Chittranjan Thakkar (“Thakkar”), as an
interested party in the bankruptcy proceeding below, filed his Motion for Leave to
Appeal Interlocutory Orders to the District Court Pursuant to 28 U.S.C. § 158(c)(3).
[D.E. 775]. Prior thereto on March 2, 2022, Thakkar filed his Notice of Appeal and
tendered the requisite filing fee for the Notice of Appeal. [D.E. 774, 776]. Thakkar’s
Notice of Appeal was taken from three interlocutory orders that were announced
from the bench during a hearing before the bankruptcy court conducted on February
17, 2022. [D.E. 769]. Thakkar’s Notice of Appeal and related Motion for Leave to
Appeal Interlocutory Orders to the District Court Pursuant to 28 U.S.C. § 158(c)(3)
were therefore timely in accordance with the provisions of Rule 8004 of the Federal
Rules of Bankruptcy Procedure, which provides as follows:
(a) NOTICE OF APPEAL AND MOTION FOR LEAVE TO APPEAL. To
appeal from an interlocutory order or decree of a bankruptcy court under
28 U.S.C. § 158(a)(3), a party must file with the bankruptcy clerk a notice
of appeal as prescribed by Rule 8003(a). The notice must:
(1) be filed within the time allowed by Rule 8002;
(2) be accompanied by a motion for leave to appeal prepared in
accordance with subdivision (b); and
(3) unless served electronically using the court's transmission
equipment, include proof of service in accordance with Rule 8011(d).
Fed. R. Bankr. P. 8004.
1
Citations to the Bankruptcy Court record throughout this Brief are referenced as “[D.E. ___]”
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Inexplicably, on November 4, 2022, the clerk of the Bankruptcy Court filed a
Transmittal of Notice of Appeal to this Court, [D.E. 832], as well as a Notice to
Appellant of Responsibilities. [D.E. 834]. On December 1, 2022, the clerk also filed
a Transmittal of Record on Appeal to District Court. [D.E. 861], although that filing
appears to have been entered as of December 2, 2022 according to the clerk’s docket
entry of that date.
Having transmitted the Record on Appeal to this Court, in accordance with
Fed. R. Bankr. P. 8018, Thakkar’s Initial Brief is herewith timely filed in support of
his appeal. Thakkar also emphasizes that in accordance with Fed. R. Bankr. P.
8010(b)(5), the following provision controls the transmittal of the Bankruptcy Court
record on appeal to this Court:
“(5)When Leave to Appeal is Requested. Subject to subdivision (c), if a
motion for leave to appeal has been filed under Rule 8004, the bankruptcy
clerk must prepare and transmit the record only after the district court, BAP, or
court of appeals grants leave.” Fed. R. Bankr. P. 8010(b)(5).
This Court therefore has jurisdiction of the Bankruptcy Court’s three
interlocutory orders announced from the bench on February 17, 2022 and which are
set forth in Thakkar’s Notice of Appeal. Those rulings are identified in Thakkar’s
Motion for Leave to Appeal Interlocutory Orders Pursuant to 28 U.S.C. § 158(c)(3)
as: (i) Order Denying Motion for Judgment on Partial Findings Under Rule 52(c)
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[D.E. 764]; (ii) Motion in Limine to Prohibit Claimants’ Designated Corporate
Representative, Clay Townsend, from Testifying [D.E. 761]; and (iii) Motion to
Compel, to Disqualify Claimants’ Corporate Representative and for Sanctions Under
F.R.C.P. 37 [D.E. 751]. See [D.E. 775 at 1.] 2
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
1.
The undersigned Appellant, Chittranjan K. Thakkar (“Thakkar”),
party to this action appearing pro se, certifies that the following is a full and
complete list of all parties in this action, including any parent corporation and any
publicly held corporation that owns 10% or more of the stock of a party:
Good Gateway, LLC, Appellee
SEG Gateway, LLC, Appellee
Thakkar, Chittranjan, Appellant
Nilhan Financial, LLC.
2. The undersigned further certifies that the following is a full and complete
2
Thakkar’s three motions were not the subject of formal written orders denying relief until
substitute Bankruptcy Judge Delano entered an Order Denying Motion for Judgment on Partial
Findings Under Rule 52 on October 21, 2022, [D.E. 827]; and an Amended Order Denying Motion
to Disqualify Clay M. Townsend, Esq. as Corporate Representative and Motion in Limine on
October 24, 2022, [D.E. 828]. Thakkar’s Motion to Compel, to Disqualify Clay Townsend as
Claimants’ Corporate Representative and for Sanctions Under F.R.C.P. 37, [D.E. 761], which was
one of the three motions summarily denied by the Bankruptcy Court on February 17, 2022, was
subject to a Notice of Preliminary Hearing filed on July 20, 2022 scheduling a preliminary hearing
on the motion for August 2, 2022. [D.E. 804], but that motion was not heard on that date. No order
appears to have been entered following the court’s denial of Thakkar’s three motions on February
17, 2022.
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list of all other persons, associations, firms, partnerships, or corporations having
either a financial interest in or other interest which could be substantially affected
by the outcome of this particular case:
Good, Carson, Interested Party;
Morgan & Morgan, P.A., Counsel for Good Gateway, LLC, and SEG
Gateway, LLC, below;
Moffa & Breuer, PLLC, Counsel for Thakkar below;
Moffa & Bierman, PLLC; Counsel for Thakkar below;
Moffa, John A., Counsel for Thakkar below;
Douglas N. Menchise, Trustee below;
United States Bankruptcy Trustee below;
Niloy Thakkar Member of Nilhan Financial,
LLC
Rohan Thakkar Member of Nilhan Financial,
LLC
3.
The undersigned further certifies that the following is a full and
complete list of all persons serving as attorneys for the parties in this
proceeding:
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Mariane L. Dorris, Esq.
R. Scott Shuker, Esq.
Shuker & Dorris, P.A.
121 S. Orange Avenue, Ste. 1120
Orlando, FL 32801
Lara Roeske Fernandez, Esq.
Trenam Law
101 E. Kennedy Boulevard, Suite 2700
Tampa, FL 33602
J Steven Wilkes, Esq.
Office of United States Trustee
501 East Polk Street
Tampa, FL 33602
3.
The undersigned further certifies that, except as disclosed, I am
unaware of an actual or potential conflict of interest affecting the district
judge or the magistrate judge in this action, and I will immediately notify the
judge in writing within fourteen days after I know of a conflict.
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Federal Rule of Bankruptcy Procedure 8019, Appellant asserts
that oral argument should be permitted in this case. Federal Rule of Bankruptcy
Procedure 8019 states that oral argument must be allowed in every case unless the
district judge determines that (1) the appeal is frivolous; (2) the dispositive issue or
issues have been authoritatively decided; or (3) the facts and legal arguments are
adequately presented in the briefs and record, and the decisional process would not
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be significantly aided by oral argument. From a substantive standpoint, the
dispositive issues on appeal would be better articulated to the Court through oral
argument, especially where a pattern in this case has developed and is well
documented that counsel representing the Appellees in the Bankruptcy Court have
made false and misleading statements to that court on a regular basis. Oral argument,
where this Court will have an opportunity to evaluate the veracity of the statements
made by counsel for the Appellees will assist the Court and permit the Court to
question counsel on key issues that the appeal briefs have raised, but perhaps require
clarification or expansion upon. Oral argument will significantly aid the Court in
affirming or reversing the Bankruptcy Court’s decisions.
ENUMERATION OF ERRORS
4. Error No. 1
The Bankruptcy Court Failed to Provide Thakkar with Basic Due Process
During the February 17, 2022 Hearing on Thakkar’s Three Motions
Properly Noticed for Hearing and Exhibited Clear Bias Against Thakkar
in the Manner that Relief was Granted to the Claimants Compared to
Summarily Denying Thakkar’s Motions
5. Error No. 2
The Bankruptcy Court Abused its Discretion in its February 17, 2022
Rulings on Thakkar’s Pretrial Motions in Failing to Recognize the
Appearance of Bias by Summarily Granting Claimants’ Motion in Limine
and Summarily Rejecting Thakkar’s Motion in Limine—both Motions
Being Significant Pretrial Determinations that Subsequently Governed
the Presentation of Trial Evidence
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6. Error No. 3
The Bankruptcy Court Erred as a Matter of Law and Abused its
Discretion in Summarily Denying Thakkar’s Three Pretrial Motions, All
of Which Resulted in Conducting the Trial on Claim 3 in an Unfair and
Arbitrary Manner and Contrary to Thakkar’s Rights to Adequate
Discovery and the Presentation of Defense Testimony from his Listed
Trial Witnesses
STATEMENT OF FACTS
Significant factual background on the procedural errors that have occurred in
this case is necessary for this appellate Court to analyze the issues presented on
appeal. On December 21, 2021, almost one year ago, a hearing was conducted in this
case in Bankruptcy Court before Judge Michael Williamson, since deceased. During
that hearing, which was to consider Motion of Chittranjan Thakkar and Niloy
Thakkar to Continue Trial on January 6, 2022 on Claim 3, (“Motion to
Reschedule”), Claimants’ counsel, R. Scott. Shuker (“Shuker”) made intentionally
false statements in opposition to the Motion to Reschedule. [D.E. 679 and 688].
These statements were untrue at the time and remain untrue today. Thakkar has
endeavored on numerous occasions to bring those misstatements to the Bankruptcy
Court’s attention on several occasions, including not only Judge Williamson, at the
time assigned to the case, but later before Judge Delano. [D.E. 685], who was
assigned to the case during Judge Williamson’s medical leave. The prejudice to
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Thakkar resulting from Shuker’s false statements has since been perpetuated in
subsequent proceedings. Neither Judge Williamson, nor Judge Delano, have
remedied the error and significant harm to Thakkar that has been caused by
Claimants’ counsel since the December 21, 2021 hearing.
The results of that hearing in part were that the January 6, 2022 trial on Claim
3 was continued to January 31, 2022. [D.E.685]. The Bankruptcy Court’s docket
sheet from December 2021 to the current date exemplifies the efforts Thakkar has
undertaken to bring this travesty to the Bankruptcy Court’s attention, which thus far
has not been successful. The results of Shuker’s lack of candor before the
Bankruptcy Court on December 21, 2021, and the Bankruptcy Court’s treatment of
Thakkar thereafter leading to the filing of the three motions heard on February 17,
2022 identified above, give rise to the need for this appeal.
On January 7, 2022, and due to Shuker and Townsend’s false statements to the
Bankruptcy Court, Thakkar filed a Motion for Order to Show Cause as to why
Claimants' counsel, R. Scott Shuker (“Shuker”) and Clay Townsend (“Townsend”),
Should not be Held in Contempt which motion identified with specificity the false
statements made by Claimants’ counsel at the December 21, 2021 hearing. [D.E.
692]. Claimants’ counsel, Shuker and Townsend, considered at that time to be cocounsel on behalf of the Claimants, manipulated the Bankruptcy Court into
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concluding that it was fair and equitable to limit witnesses to be called at the
trial of Claim 3 only to Townsend and Thakkar. The result was and continues to
be that Thakkar’s trial witnesses properly disclosed as such on September 9, 2021,
have not been subject to discovery depositions, nor is Thakkar able to present their
testimony in his defense. [D.E. 665]. The Bankruptcy Court’s most recent ruling on
Thakkar’s efforts to present his objections to Claim 3 was entered on December 19,
2022 at which time the court entered an Order Granting Good Gateway, LLC and
SEG Gateway, LLC’s Motion to Strike Chittranjan Thakkar’s Witness List. [D.E.
868]. This most recent order again perpetuated the prejudice associated with the false
and misleading statements made by Claimants’ counsel during the hearings of
December 21, 2021 and February 17, 2022.
On January 10, 2022, Thakkar requested expedited consideration of his
Motion for Order to Show Cause [D.E. 693], and two days later filed his Expedited
Motion for Reconsideration of the Order Granting Motion to Continue January 6,
2022 Trial Date. [D.E. 694]. In other words, Thakkar immediately brought the
misconduct and unfairness of the December 21, 2021 proceeding to the attention
of the Bankruptcy Court. Although the Bankruptcy Court had granted the Motion
to Reschedule the January 6, 2022 trial date, in doing so the court specifically
adopted the false statements made by Shuker and Townsend at the December 21,
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2021 hearing which has effectively hamstrung Thakkar’s ability to depose and call
witnesses in defense of Claim 3. Witnesses that Claimants had notice of for months.
On January 14, 2021, Thakkar filed his Expedited Motion to Compel
Depositions and Production of Records and Request for Expedited Consideration.
[D.E. 698]. Prior to filing that motion, Thakkar had noticed the discovery depositions
of Douglas Menchise and Carson Good—two witnesses that were properly listed on
Thakkar’s List of Witnesses for Trial.
The Court scheduled a hearing on Thakkar’s Motion for Order to Show Cause
which was conducted on January 25, 2022. On January 24, 2022, Thakkar filed his
Brief on Motion for Order to Show Cause as to why Claimants' Counsel, R. Scott
Shuker and Clay Townsend, should not be Held in Contempt; Expedited Motion to
Compel Depositions and Production of Records and Request for Expedited
Consideration; and Expedited Motion for Reconsideration of Order Granting Motion
to Continue Trial Date. [D.E. 710]. Thakkar’s Brief was comprised of 158 pages of
argument and attachments which identified with specificity the errors made by
Judge Williamson based upon the false statements made by Claimants’ counsel,
Shuker and Townsend, at the December 21, 2021 hearing.
On January 25, 2022, Judge Williamson conducted a hearing on Thakkar’s
Motion for Order to Show Cause. [D.E. 712]. Thakkar’s motions heard by the Court
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on January 25, 2022 were denied. Notwithstanding custom and practice, Claimants’
counsel failed to permit Thakkar an opportunity to review the form of the proposed
orders submitted to the Court for entry following the January 25, 2022 hearing,
resulting in Thakkar having no opportunity to object or comment upon the form of
the orders the Court entered following the hearing.
Although the form of the proposed orders drafted unilaterally by Claimants’
counsel granted Thakkar’s request for a continuance of the Claim 3 trial date in this
case [D.E. 715], and denied Thakkar’s motions at the January 25, 2022 hearing, the
colloquy among Claimants’ counsel and the Court, especially with respect to the
December 21, 2021 hearing, without a fair and adequate opportunity for
Thakkar to respond or provide input, resulted in the Court’s decision to limit
Thakkar from presenting evidence at trial from any witness other than himself.
This limitation was expressly orchestrated by Claimants’ counsel; and was done so
without providing Thakkar, a pro se litigant in this case, with an opportunity to be
heard. This effort by Claimants’ counsel was readily approved by the Bankruptcy
Court, again without the court providing Thakkar with any meaningful
opportunity to present factual arguments ordinarily accorded to attorneys
appearing before the court or any meaningful opportunity to be heard.
Although the Court has since determined that Claimants are only represented
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in this action by Shuker and not Townsend as co-counsel, the factual statements
made by Shuker and Townsend at the hearing conducted on December 21, 2021 belie
that conclusion.3 As demonstrated by Thakkar’s Motion for Order to Show Cause,
Townsend was addressed by the court as an attorney—not as a witness—and
was asked by the court what Townsend’s position was with respect to Thakkar’s
Motion for Continuance of the January 6, 2022 trial date on Claim 3. [D.E. 692 at
21-22]. Without allowing Thakkar an opportunity to comment or correct the false
and misleading statements made to the Bankruptcy Court during the December 21,
2021 hearing, the court made summary determinations which severely hamper
Thakkar’s ability to present defense evidence in this case. Clearly this was the
objective sought by Claimants’ counsel and Townsend.
This unfairness, lack of due process, and failure to recognize Thakkar as a pro
se litigant in this case did not end after the rulings made following the December 21,
2021 hearing. However, the Bankruptcy Court recognized Thakkar as a party in
this case only after deciding the issues. For example, the following statements by
the Court were made before the court even recognized Thakkar at the December 21,
3
Thakkar filed his Motion to Disqualify Clay M. Townsend, Esq. and Morgan & Morgan, P.A.,
and his subsequently filed Memorandum in Support on April 30, 2022 and May 12, 2022,
respectively, [D.E. 779, 783], which was denied by Bankruptcy Judge Delano on August 15, 2022.
[D.E. 818, 819]. Thakkar asserted that Townsend was acting both as a witness and as co-counsel in
this proceeding, which is improper. On November 4, 2022 Thakkar filed his Motion for
Reconsideration of Judge Delano’s denial of his Motion to Disqualify, which has not yet been
heard or ruled on by the Bankruptcy Court. [D.E. 838].
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2021 hearing [D.E. 692 at 7]:
At the hearing conducted in the Bankruptcy Court on January 25, 2022, the
court denied Thakkar’s Motion to Compel Depositions and Production of Records
that Thakkar had filed on January 14, 2022 to prepare properly for trial. [D.E. 698].
The form of the January 27, 2022 order excused any witness Thakkar sought to
depose prior to trial from being subject to discovery and excused those witnesses
from producing any requested documents. Although the orders which followed the
January 25, 2022 hearing provided that Townsend agreed to submit to a half-day
deposition by zoom on January 27, 2022. [D.E. 719], as brought to the court’s
attention later, the Townsend deposition was nothing but a sham effort by
Shuker and Townsend to obstruct discovery. Nevertheless, the unfairness and
chaos continued all to the detriment of Thakkar’s ability to mount a defense to Claim
3.
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On January 28, 2022 Thakkar filed his Emergency Motion to Reschedule
Hearing on Trial Scheduled for January 31, 2022 and for Reconsideration of Motion
to Compel Depositions and Production of Documents. [D.E. 735]. A preliminary
hearing was held on Thakkar’s emergency motion on January 31, 2022, at which
time the court denied Thakkar’s motions a second time. However, the court
continued the January 31, 2022 trial on Claim 3 to February 17, 2022 at 9:30
a.m. [D.E. 738].
On February 11, 2022, before the February 17, 2022 continued trial date,
Thakkar filed his Motion to Compel, to Disqualify Clay Townsend as Claimants’
Corporate Representative, and for Sanctions Under F.R.C.P. 37 [D.E. 751] (“Motion
to Compel”). Prior to filing Thakkar’s Motion to Compel, he had made several
efforts to depose Townsend as the only witness permitted by the Court to testify in
support of the Claimants’ allegations in Claim 3. Townsend has been designated not
only as the Claimants’ corporate representative, but he is also the only witness thus
far permitted to testify in support of Claim 3.
At the time the Bankruptcy Court heard Thakkar’s Expedited Motion to
Compel Depositions and the Production of Documents [D.E. 698] but denied that
motion (“Motion to Compel Depositions”) on January 25, 2022, his motion was
denied even though Thakkar was seeking to depose not only Townsend, but Carson
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Good, the beneficial owner of the Claimant limited liability companies, and the
Trustee in the original debtor’s case, Douglas Menchise. At the time Thakkar’s
Motion to Compel Depositions was heard, Claimants’ counsel made a series of false
statements and representations to Judge Williamson with respect to Thakkar’s
interest in deposing several witnesses located in Georgia and Florida that Thakkar
believes have discoverable information relevant to this proceeding. As described in
Thakkar’s Motion to Compel Depositions, there were various efforts undertaken by
Townsend to thwart and obstruct not only his deposition, but the depositions of
Carson Good and the Trustee. [D.E. 698 at ¶¶ 2-5].
At the January 25, 2022 hearing before this Court, Claimants’ counsel offered
to permit the deposition of Townsend by agreement, which was memorialized in the
Court’s January 27, 2022 Order [D.E. 719]. That Order provided in relevant part:
“SEG Gateway, however, has agreed to make Townsend available for a half-day
deposition by Zoom on January 27, 2022.” Townsend’s deposition (or at least a
semblance of a deposition) took place for approximately two hours on January 27,
2022. Thakkar’s November 4, 2022 Motion for Reconsideration of Amended Order
Denying Motion to Disqualify Clay M. Townsend, Esq. As Corporate Representative
and Motion in Limine (“Motion for Reconsideration”) describes in detail the
unprofessional and infantile conduct by two “respected” members of the Florida Bar
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during Townsend’s deposition. [D.E. 838]. The relief sought by Thakkar in the
context of his Motion for Reconsideration was to request the Bankruptcy Court to
sanction Townsend and Shuker under F.R.C.P. 37 (Claimants’ counsel) for the total
frustration of Thakkar’s efforts to depose Townsend as the Claimants’ corporate
representative. The transcript of the Townsend deposition and the video segments of
the deposition were provided to the Bankruptcy Court at the time Thakkar filed his
Motion in Limine to Prohibit Claimants’ Designated Corporate Representative Clay
Townsend from Testifying . [D.E. 761, Exh A, F, G, H]]. They have been included in
the record on appeal to this Court. Those seventy-nine separate video segments of
theTownsend deposition depict the outrageous and sanctionable conduct displayed
by Townsend and Shuker designed to frustrate and avoid a discovery deposition
allowed by agreement of the Claimants in preparation for the trial presentation of
Townsend’s testimony as the corporate representative of the Claimants. This Court
can gain a full appreciation for the extraordinary misconduct engaged in by both
lawyers involved as Claimants’ representatives by review of the deposition transcript
and/or viewing the video clips of the Townsend deposition which have become a part
of the record on appeal. [Id.].
As Thakkar pointed out in his Motion to Compel, this sort of misbehavior and
unprofessional, obstructive conduct is precisely why Rule 37 enabled the relief
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sought by Thakkar in terms of disqualifying Townsend as Claimants’ sole witness.
For this Court to fully appreciate what these two Claimants’ representatives are
doing in this case, Thakkar urges the Court to take the time to view these very short
video clips of Townsend’s deposition. The Court should be appalled.
STANDARD OF REVIEW
When reviewing a bankruptcy court’s decision, the standard of review is the
same as the standards of review by the circuit court of a review by the district court.
See Reynolds v. Servisfirst Bank (In re Stanford), 17 F.4th 116, 121 (11th Cir. 2021)
(citing United Mine Workers of Am. Combined Benefit Fund v. Toffel (In re Walter
Energy, Inc.), 911 F.3d 1121, 1135 (11th Cir. 2018)). Review of conclusions of law
drawn by the bankruptcy court are reviewed de novo. Factual findings are reviewed
for clear error. See id. Other “[e]quitable determinations by the Bankruptcy Court are
[also] subject to review under an abuse of discretion standard.” Bakst v. Wetzel (In re
Kingsley), 518 F.3d 874, 877 (11th Cir. 2008) (quoting Sipes v. Atl. Gulf Cmtys.
Corp. (In re General Dev. Corp.), 84 F.3d 1364, 1367 (11th Cir.1996)).
ARGUMENT
Error No. 1
The Bankruptcy Court Failed to Provide Thakkar with Basic Due Process
During the February 17, 2022 Hearing on Thakkar’s Three Motions
Properly Noticed for Hearing and Exhibited Clear Bias Against Thakkar
in the Manner that Relief was Granted to the Claimants Compared to
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Summarily Denying Thakkar’s Motions
The transcript of the entire proceeding that occurred in the Bankruptcy Court
is part of the record transmitted on appeal. [D.E. 785]. Included in the first ten pages
of the transcript is the record which addresses Shuker’s argument in support of
Claimant’s Motion in Limine heard by Judge Williamson on February 17, 2022.
[D.E. 752]. Notwithstanding that Thakkar had properly filed and presented for
hearing his three motions to be addressed by the court on February 17, 2022, the only
motion that was heard by Judge Williamson was the Claimants’ Motion in Limine,
which the court summarily granted without providing any opportunity for
Thakkar or counsel representing the other objecting parties to respond in any
fashion. The court ruled as follows [D.E. 785 at 5]:
[Continued on Next Page]
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Not only did the court simply pass on any response or argument to be made by
Thakkar at the hearing, the court did not even consider the copious written materials
that Thakkar had filed before the hearing which challenged the propriety of the
Claimants’ Motion in Limine and provided substantial support for Thakkar’s own
Motion to Compel, Motion in Limine, and Motion for Judgment on Partial Findings
under F.R.C.P. 52(c). [D.E. 751, 761, 764]. All three motions filed by Thakkar
raised issues that required resolution before presentation of evidence at the
Claim 3 trial, but even so, the court refused to address Thakkar’s motions with any
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sort of fairness, due process or even the appearance of impartiality. In short, Thakkar
was abruptly brushed aside without any opportunity to address any of the pretrial
issues that the court should have considered. This process unmistakably is one of the
clearest examples of a violation of due process to a litigant as one can imagine and
must be remedied at this stage of the litigation to avoid the perpetuation of clear legal
error. The base requirement of due process is an opportunity to be heard. Although
courts have wide latitude in controlling their own docket and case management, that
latitude does not include merely silencing a litigant from responding to and
presenting significant pretrial issues, which rulings have a direct impact on the
presentation of evidence during trial. The Bankruptcy Court erred as a matter of law
and abused its discretion in the manner that it dealt with Thakkar’s three motions
queued for hearing at the February 17, 2022 hearing. The following colloquy
between Judge Williamson and Thakkar tells the story of how the court swept
Thakkar’s three pretrial motions under the rug; refused to even consider the motions
before denying them; and refused to hear Thakkar’s response to the Claimant’s
Motion in Limine. Thakkar’s three motions raised significant pretrial issues which
the court simply did not want to address. This is not fairness, not due process and
demonstrates a clear failure to provide Thakkar with an opportunity to be heard. This
Court should not allow a civil proceeding to go unchecked with this sort of abuse of
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judicial discretion. Although Thakkar subsequently sought the recusal of Judge
Williamson based in part on his treatment of Thakkar following the December 21,
2021 and February 17, 2022 hearings, his Motion for Recusal was subsequently
denied by Judge Delano. The transcript of the February 17, 2022 hearing reflects the
following colloquy between the court and Thakkar, [D.E. 820]:
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The summary manner Thakkar endured during the hearing and the court’s
unwillingness to allow Thakkar to be heard patently violates Thakkar’s due process
rights in this proceeding. A close examination of the December 21, 2021 proceeding
in this case, coupled with the intentionally obstructive conduct by Shuker and
Townsend during the Townsend deposition on January 27, 2022 should lead any
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reasonable observer to conclude that Thakkar has not been accorded fairness and
due process in this proceeding—intentionally so.
“Yet due process in civil cases includes neither the right to oral argument,
nor the right to jury trial, but only the "opportunity to be heard." Grun v.
Pneumo Abex Corp., 163 F.3d 411, 423 (7th Cir. 1998); see also Travelers
Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc., 38 F.3d 1414, 1418 (5th Cir.
1994) (finding no violation of due process where oral argument would not
assist court). As already explained, the district court did everything it
could to ensure that the Fraziers' arguments were heard. Consequently,
the Fraziers were not prevented from fairly presenting their case, and there
was no abuse of discretion in the district court's denial of the Fraziers' Rule
60 motion.”
Frazier v. Wells Fargo Bank, N.A., 541 F. App'x 419, 5 (5th Cir. 2013).
“The principle of fundamental fairness is the essence of due process. In re
Adams Estate, 257 Mich. App. 230, 233-234, 667 N.W.2d 904 (2003). Due
process is a flexible concept, however, and determining what process is due
in a particular case depends on the nature of the proceeding, the risks and
costs involved, and the private and governmental interests that might be
affected. Genesco, Inc. v. Dep't of Environmental Quality, 250 Mich. App.
45, 56, 645 N.W.2d 319 (2002). Generally, due process in civil cases
requires notice of the nature of the proceedings and an opportunity to
be heard in a meaningful time and manner by an impartial
decisionmaker.”
Great Lakes Consortium v. State, File No. 5:06-CV-187, at *8 (W.D. Mich. Dec. 29,
2006).
“It is noteworthy that procedural safeguards constitute the major portion of
our Bill of Rights. And so, no one now doubts that in the criminal law a
"person's right to reasonable notice of a charge against him, and an
opportunity to be heard in his defense — a right to his day in court — are
basic in our system of jurisprudence." In re Oliver, 333 U.S. 257, 273. "The
hearing, moreover, must be a real one, not a sham or a
pretense." Palko v. Connecticut, 302 U.S. 319, 327. Nor is there doubt that
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notice and hearing are prerequisite to due process in civil proceedings, e.
g., Coe v. Armour Fertilizer Works, 237 U.S. 413. Only the narrowest
exceptions, justified by history become part of the habits of our people or by
obvious necessity, are tolerated. Ownbey v. Morgan, 256 U.S. 94; Endicott
Johnson Corp. v. Encyclopedia Press, 266 U.S. 285; see Cooke v. United
States, 267 U.S. 517, 536.”
Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 164-65 (1951).
Error No. 2
The Bankruptcy Court Abused its Discretion in its February 17, 2022
Rulings on Thakkar’s Pretrial Motions in Failing to Recognize the
Appearance of Bias by Summarily Granting Claimants’ Motion in Limine
and Summarily Rejecting Thakkar’s Motion in Limine—both Motions
Being Significant Pretrial Determinations that Subsequently Governed
the Presentation of Trial Evidence
All three motions summarily rejected by the Bankruptcy Court on February
17, 2022, and which arose from the failure to meaningfully evaluate Thakkar’s
factual arguments previously made at the December 21, 2021 hearing, have
significantly impacted the present status of the trial of Claim 3. As the transcript of
the December 21, 2021 hearing demonstrates, the court again ruled on the
question of continuing the January 6, 2022 trial date before recognizing
Thakkar as a pro se litigant. [D.E. 692 at 24]:
[Continued on Nex Page]
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Amazingly, the court recognized Thakkar only after a decision was made
on the issue of continuing the trial from January 6, 2022 to January 31, 2022.
The result—Thakkar was “crammed down” with conditions attached to the
continuance that he did not want; did not advocate for; did not agree to; were based
on Shuker’s false statements; and Townsend’s adoption of those false statements.
Contrary to the court’s later ruling on August 15, 2022 that Thakkar’s Motion in
Limine to Prohibit Claimants’ Designated Corporate Representative, Clay
Townsend, from Testifying, [D.E. 761-762], should be denied as Townsend was not
appearing in this case as co-counsel, rather as a corporate representative, the court
clearly considered Townsend as co-counsel throughout these proceedings. In fact at
the December 21, 2021 hearing, the court queried Townsend on his position on the
continuance of the January 6, 2022 trial date as follows [D.E. 692 at 21]:
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Why would the court solicit the views of Townsend as a witness and corporate
representative of the Claimants? The reality is that throughout these proceedings, the
court considered Townsend to be co-counsel appearing for the Claimants and the
docket of the Bankruptcy Court establishes that. There are no less than twenty-three
Procedural Memos in the Bankruptcy Court docket referring to Townsend as
Claimants’ co-counsel. None of that was properly considered by the court at the
February 17, 2022 hearing because Judge Williamson made it clear he did not intend
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to consider Thakkar’s Motion in Limine. It is axiomatic that when a party challenges
the competency of a witness, the court abuses its discretion if a non-frivolous
challenge is made before that witness is called to testify yet the court refuses to
address the challenge and permits the witness to testify. That is precisely what the
court did here on February 17, 2022 [D.E. 785 at 7]:
On remand to the Bankruptcy Court, Thakkar’s arguments supporting his
Motion in Limine, his Motion to Compel, and his Motion for Judgment on Partial
Findings under F.R.C.P. 52(c)4 should be heard, subject to an evidentiary hearing to
permit the record to be clarified and corrected, and the related errors below reversed.
Error No. 3
The Bankruptcy Court Erred as a Matter of Law and Abused its
4
Although Thakkar’s Motion for Judgment on Partial Findings Under Rule 52(c) was subsequently
denied by order dated October 21, 2022, [D.E. 827], without prejudice subject to a right to renew
the motion upon close of Claimants’ case-in-chief, the basis of the motion was a substantive
choice-of-law legal issue that should have been resolved by the Bankruptcy Court as a pretrial
matter much like a motion for summary judgment or motion to dismiss. A determination whether
the substantive state law of Florida or Georgia controls Claim 3 is not a fact driven inquiry and,
depending on the outcome of that determination, is likely to have saved months of litigation and the
costs thereof.
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Discretion in Summarily Denying Thakkar’s Three Pretrial Motions, All
of Which Resulted in Conducting the Trial on Claim 3 in an Unfair and
Arbitrary Manner and Contrary to Thakkar’s Rights to Adequate
Discovery and the Presentation of Defense Testimony from his Listed
Trial Witnesses
“We recognize that district courts enjoy broad discretion in deciding how best
to manage the cases before them. See, e.g., United States v. McCutcheon, 86 F.3d
187, 190 (11th Cir. 1996). This discretion is not unfettered, however. When a
litigant's rights are materially prejudiced by the district court's mismanagement of a
case, we must redress the abuse of discretion.” Chudasama v. Mazda Motor Corp.,
123 F.3d 1353, 1366-67 (11th Cir. 1997). It cannot be disputed that the Bankruptcy
Court’s unwillingness to treat Thakkar and his legal positions with due respect and to
at least hear them constituted an abuse of discretion not only during the February 17,
2022 hearing but at the December 21, 2021 hearing as well. The statements made by
Shuker and Townsend at the earlier hearing, coupled with the rulings by the court at
that hearing, represent the beginning of the Claimants’ manipulation that has now
resulted in severe prejudice to Thakkar and his ability to present his defense to Claim
3. As the Eleventh Circuit held in Chudasama:
“Failure to consider and rule on significant pretrial motions before
issuing dispositive orders can be an abuse of discretion. See, e.g., In re
School Asbestos Litig., 977 F.2d 764, 792-93 (3d Cir. 1992) (granting writ
of mandamus as remedy for district court's "arbitrar[y] refus[al] to rule on a
summary judgment motion"); Ellison v. Ford Motor Co., 847 F.2d 297, 30001 (6th Cir. 1988) (finding district court's failure to rule on motion to amend
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complaint before granting summary judgment abuse of discretion);
McDonnell Douglas Corp. v. Poling, 429 F.2d 30, 31 (3d Cir. 1970)
(directing district court to consider and rule on motion to transfer before
discovery on the merits of the case (but after discovery related solely to
transfer issue)).”
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997). The
court’s rulings following the December 21, 2021 and February 17, 2022 hearings
represent a far more egregious set of facts than reported in Chudasama.
As Thakkar explained in detail in his Motion for Order to Show Cause as to
why Claimants’ Counsel, R. Scott Shuker and Clay Townsend, Should not be Held
in Contempt, [D.E. 692], and in his Brief on Motion for Order to Show Cause filed
prior to the January 25, 2022 hearing, [D.E. 710], Shuker intentionally misled the
court as described in Thakkar’s Motion for Order to Show Cause on two key aspects
of the show cause: (i) first, that there were only four days between the December 21,
2021 hearing date and the scheduled January 6, 2022 trial date remaining for
Thakkar to depose the witnesses listed for trial; and (ii) that the agreement between
counsel stated in the October 19, 2021 Joint Motion to Reschedule Hearing on
October 28, 2021 was other than what the precise terms of that Joint Motion were.
[D.E. 672]. In fact, the correct agreement recited in the Joint Motion was that:
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The transcript of the record from the December 21, 2021 hearing clearly
demonstrates again, that Shuker and Townsend intentionally misrepresented facts to
the court which were seized upon in fashioning the ruling continuing the Claim 3
trial from January 6, 2022 to January 31, 2022. [D.E. 692 at 20-25]. It was the
manipulation of the truth by Shuker and Townsend at the December 21, 2021 hearing
that was the genesis of the court’s subsequent rulings on February 17, 2022 that have
given rise to a set of procedural miscues foreclosing Thakkar from having a full and
fair opportunity to present his defense to Claim 3. It is this state of the record that
this Court must examine on appeal for violations of due process and an abuse of
discretion. Upon a careful look at the record, the Bankruptcy Court should be
ordered to conduct a full and fair hearing on Thakkar’s motions challenging the false
and misleading statements made to the court and to make findings of fact and
conclusions of law with respect to Thakkar’s three motions summarily denied on
February 17, 2022. Allowing this civil action to continue this trajectory without
according to Thakkar an adequate opportunity to depose his listed trial witnesses and
to present their trial testimony will perpetuate error that will delay the ultimate
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resolution of Claim 3.
Local Rule 9013-1 provides as follows in the Bankruptcy Court:
“(b) Motions May Be Considered by the Court Without a Hearing. As
contemplated in 11 U.S.C. § 102(1), the Court may consider certain types of
motions without a hearing. Under Local Rule 2002-4, the Court has published
a list of the types of motions that may be served using negative notice
procedures (the “Negative Notice List”). The Court has also published a list of
the types of motions (generally administrative in nature) that may be
considered without a hearing (the “Accompanying Orders List”). The
Accompanying Orders List indicates whether the Court will prepare an order
on the motion or whether the order is to be submitted by the moving party.
However, the Court, in its discretion, may choose to set a motion for hearing
even if it is included on the Negative Notice List or the Accompanying Orders
List. The Negative Notice List and the Accompanying Orders List are posted
on The Source webpage of the Court’s website, www.flmb.uscourts.gov.”
CONCLUSION AND RELIEF REQUESTED
None of Thakkar’s three pretrial motions before the court on February 17,
2022, which the court refused to conduct a hearing on, fall within the parameters of
the above Local Rule. Thakkar was therefore entitled to be heard on those
Motions, but he was shuffled aside by the Court in a manner that demonstrated a
clear violation of due process, and a pro se bias. It is incumbent on a reviewing court
to examine the record, evaluate the errors presented on appeal, and fashion a remedy
to correct those errors. Merely because a trial judge has wide discretion and latitude
to control their docket, determine the propriety of addressing pretrial matters in a
manner to most efficiently manage a civil case does not allow the court to violate a
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litigant’s due process rights. No reasonable observer that reviews the hearing
transcripts of December 21, 2021, February 17, 2022, and the antics of Shuker and
Townsend during the deposition of Townsend conducted on January 27, 2022 would
fail to draw the conclusion that Thakkar has been ridden roughshod in this case.
Civil disputes are at times difficult. Tempers flair and delays occur. But the
overarching objective is for the referee (the court) to manage the process in a fair and
balanced manner so that the results of the process will result in fairness and justice.
Those objectives are not possible where the process is so unbalanced and devoid of
due process to one party compared to others that the outcome is likely to be riddled
with appellate errors. Thakkar brings this interlocutory appeal now in hopes that
this appellate Court will review the lack of impartiality and due process
accorded to Thakkar in this case and remand this case back to the Bankruptcy
Court with instructions to: (i) permit Thakkar the opportunity to present evidence
at trial from the witnesses he listed on a timely basis; (ii) set aside the lower court’s
order(s) to the effect that only one witness is permitted for the Claimants and the
objectors to Claim 3; (iii) require the Bankruptcy Court to permit either oral
argument or an evidentiary hearing upon a full and fair consideration of the three
Motions which the court below failed to properly consider on February 17, 2022; and
(iv) enter an order reversing the lower court’s denial of Thakkar’s Motion for
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Sanctions Under F.R.C. P. 37 for the misconduct and obstruction of the Townsend
deposition conducted on January 27, 2022 and to provide Thakkar with an
opportunity to complete the Townsend deposition without further obstructive
misconduct.
Dated January 2, 2023.
Respectfully Submitted,
________________________
Chittranjan K. Thakkar
Appellant, Pro Se
3985 Steve Reynolds Blvd.
Building L-101
Norcross, GA 30093
Phone: 678-488-6987
Email: thakkar1111@gmail.com
CERTIFICATE OF COMPLIANCE
The undersigned pro se Appellant does hereby certify that the Brief submitted
herewith is submitted under Rule 8015(a)(7)(B) and that the document complies with
the type-volume limitation provided in said Rule. Specifically, the document is
prepared in New Times Roman style in 14-Point font.
The undersigned has relied on the word count of the word-processing system
used to prepare the document which reflects that the document, exclusive of those
words that do not require to be included in the word count, total 6,893 words.
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CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of January 2023, the foregoing document
was electronically filed with the Clerk of Court via the Court’s Electronic Document
Submission WebPortal which in turn is then filed using the Court’s CM/ECF system,
which will automatically notify all counsel of record.
_____________________
Chittranjan Thakkar
Appellant, Pro Se
39