Harold Rosbottom, Jr. v. Gerald Schiff ( 2019 )

Case: 18-30888 Document: 00514964234 Page: 1 Date Filed: 05/20/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-30888 May 20, 2019
Lyle W. Cayce
Clerk
In the Matter of: HAROLD L. ROSBOTTOM, JR.
Debtor
HAROLD L. ROSBOTTOM, JR.,
Appellant
v.
GERALD H. SCHIFF; LOUISIANA TRUCK STOP AND GAMING, L.L.C.,
Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:17-CV-638
USDC No. 5:17-CV-668
Before HAYNES, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
Harold L. Rosbottom, Jr., appeals the judgment of the district court
affirming the bankruptcy court’s Order Granting Motion for Final Decree.
Because we find no error, we AFFIRM.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-30888 Document: 00514964234 Page: 2 Date Filed: 05/20/2019
No. 18-30888
I.
On June 9, 2009, Rosbottom filed a Chapter 11 Voluntary Petition for
bankruptcy. On February 18, 2010, the United States Trustee appointed
Gerald H. Schiff as the Chapter 11 Trustee under 11 U.S.C. § 1104. The
Chapter 11 plan was confirmed on May 1, 2013. Schiff filed a Motion for Final
Decree on October 31, 2016. After numerous continuances, a hearing was held
on March 23, 2017. Rosbottom, who is incarcerated in relation to financial
misdeeds underlying the bankruptcy, had requested and received permission
to appear telephonically but was unable to attend the hearing telephonically
because of a security concern at the federal prison. As a result of Rosbottom’s
inability to attend the hearing, the bankruptcy court allowed him access to the
hearing transcript and allowed him to file a post-hearing memorandum. On
May 1, 2017, the bankruptcy court entered an Order Granting Motion for Final
Decree closing the case. As a result of the final decree being granted and the
case being closed, the bankruptcy court entered thirteen separate orders
denying as moot various motions filed by Rosbottom.
Thereafter, Rosbottom appealed, arguing that: 1) the bankruptcy court
violated his due process rights and Fed. R. Bankr. P. 9029 and Fed. R. Civ. P.
83(a)(2) by excluding Rosbottom’s evidence in opposition to the Final Decree
Order by operation of the bankruptcy court’s standing order regarding
telephonic appearances; 2) the bankruptcy court erred in never ruling upon
and deeming moot by its Final Decree Order pending “substantive” motions to
modify the confirmed Chapter 11 Reorganization Plan; and 3) the bankruptcy
court erred in its opinion that Rosbottom lacked cognizable legal interest in a
contest matter initiated by a timely motion to modify the confirmed Chapter
11 Reorganization Plan and ruling that it was impossible for the court to grant
Rosbottom any effectual relief both before and after it entered its Final Decree
2
Case: 18-30888 Document: 00514964234 Page: 3 Date Filed: 05/20/2019
No. 18-30888
Order. The district court affirmed. Rosbottom v. Schiff (Rosbottom I), 2018
WL 2946400 (W.D. La. 2018). Subsequently, Rosbottom filed this appeal.
II.
The bankruptcy court has a rule prohibiting presentation of evidence
telephonically. Rosbottom challenges this rule as violating his due process
rights. We conclude that the rule does not facially violate due process, as many
litigants are able to participate in person either via an attorney or by
themselves. See Associated Builders & Contractors of Tex., Inc. v. NLRB, 826
F.3d 215, 220 (5th Cir. 2016) (recognizing that a facial challenge to a rule
requires a showing of “no set of circumstances” in which the rule would be valid
(quoting Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir.
2006))). We also conclude that, while there could be circumstances where
application of this rule in a given case could create due process concerns,
Rosbottom has failed to show that his due process rights were violated in this
particular situation. Specifically, the District court agreed with the bankruptcy
court, which stated: “Pro se debtors may represent[] themselves, but are
assured no additional rights than any other litigant. The debtor could have
hired an attorney, or sought other legal process to appear at the hearing.”
Rosbottom I, 2018 WL 2946400, at *4. While claiming indigency, Rosbottom
cites no record evidence to support his contention that he could not have hired
an attorney, nor does he contend that he sought and was denied the ability to
obtain counsel. He also does not challenge the statement that he could have
“sought other legal process to appear at the hearing.” 1 Accordingly, we
conclude that this particular situation presents no error in this regard.
1 We agree with the district court’s analysis of Rosbottom’s challenge to the telephone
rule based on Federal Rule of Bankruptcy Procedure 9029(b). Rosbottom I, 2018 WL 2946400,
at *4–5.
3
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No. 18-30888
With respect to the merits of the district court’s ruling on the second and
third issues raised, we have considered this appeal on the basis of the briefs,
the record, and the applicable law. Having done so, we conclude that
Rosbottom has not established reversible error in those rulings. AFFIRMED.
Judge Ho concurs in the judgment only.
4