Joe Pulczinski v. Trinity Structural Towers

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3814
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In re: Interstate Bakeries Corporation, *
also known as Butternut Bakeries, also *
known as Colombo Bakery, also *
known as Continental Baking *
Company, also known as Cotton’s *
Holsum Bakeries, also known as *
DiCarlo Bakery, also known as *
Dolly Madison Bakery, also known as *
Drake’s Bakery, also known as Eddy’s *
Bakery, also known as Holsum Bakery, *
also known as Hostess Bakeries, also *
known as Interstate Brands *
Companies, also known as Interstate *
Brands West Corporation, also known *
as J.J. Nissen Bakery, also known as *
Merita Bakeries, also known as *
Millbrook Bakeries, also known as My *
Bread Bakery, also known as Parisian *
Bakery, also known as San *
Francisco French Bread Company, also *
known as Sunbeam Bakery, also *
known as Sweetheart Bakery, also *
known as Weber’s Bread, also *
known as Wonder Bakeries, also *
known as Wonder/Hostess Bakeries, *
*
Debtor, *
*
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U. S. Bank National Association, in *
its capacity as Trustee for the IBC *
Creditors Trust, *
*
Appellee, *
* Appeal from the United States
v. * Bankruptcy Appellate Panel
* for the Eighth Circuit.
SMF Energy Corporation, doing *
business as Streicher Mobile * [UNPUBLISHED]
Fueling, Inc., *
*
Appellant. *
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Submitted: July 30, 2012
Filed: August 2, 2012
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Before MURPHY, ARNOLD, and SMITH, Circuit Judges.
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PER CURIAM.
In this appeal arising from Chapter 11 filings by Interstate Bakeries
Corporation (IBC) and seven of its affiliates, SMF Energy Corporation, doing
business as Streicher Mobile Fueling, Inc. appeals the decision of the Bankruptcy
Appellate Panel (BAP) affirming the bankruptcy court’s adverse judgment on1
preference-avoidance claims asserted by U.S. Bank National Association, the Trustee
for the IBC Creditors’ Trust.
The Honorable Jerry W. Venters, United States Bankruptcy Judge for the1
Western District of Missouri.
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This court applies the same standards of review as the BAP: we review the
bankruptcy court’s factual findings for clear error, and we review its conclusions of
law de novo. See In re Vote, 276 F.3d 1024, 1026 (8th Cir. 2002) (standards of
review). After careful review of the record and the parties’ arguments on appeal, we
agree with the BAP that there is no basis for reversing the judgment of the bankruptcy
court. See Fed. R. Civ. P. 3 (civil action is commenced by filing complaint with
court), 15(c)(1)(B) (amendment to pleading relates back to date of original pleading
when amendment asserts claim or defense that arose out of conduct, transaction, or
occurrence set out in original pleading); Fed. R. Bankr. P. 7003 (Fed. R. Civ. P. 3
applies in bankruptcy proceedings), 7015 (Fed. R. Civ. P. 15 applies in adversary
proceedings); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 150 n.3 (1984)
(per curiam) (rationale of Fed. R. Civ. P. 15(c) is that party who has been notified of
litigation concerning particular occurrence has been given all notice that statutes of
limitations were intended to provide); Moore Co. of Sikeston, Mo. v. Sid Richardson
Carbon & Gasoline Co., 347 F.2d 921, 922 (8th Cir. 1965) (rejecting defendant’s
contention that, in addition to filing complaint, reasonable diligence in obtaining
service of process was required to toll statute of limitations; plain, clear, well-
understood and unambiguous language of Rule 3 provides that civil action is
commenced by filing complaint with court, and rule sets forth no additional
requirements or conditions); see also Fed. R. Civ. P. 42(b) (for convenience, to avoid
prejudice, or to expedite and economize, court may order separate trial of one or more
separate claims); Fed. R. Bankr. P. 7042 (Fed. R. Civ. P. 42 applies in adversary
proceedings); In re Alexander, 236 F.3d 431, 433 (8th Cir. 2001) (per curiam)
(arguments not presented to bankruptcy court were not properly before court of
appeals).
Accordingly, we affirm. See 8th Cir. R. 47B.
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