Rosen v. Andresen

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PETER C. ANDRESEN, 	* 	Civil Nos. PJM 06-3043
* 	PJM 06-3045
Appellant, 	* 	PJM 06-3048
* 	PJM 06-3050
v. 	*
*
GARY A. ROSEN, et. al., 	*
*
Appellee. 	*
MEMORANDUM OPINION
I.
On November 3, 2006, Appellant-Debtor Peter Andresen filed a timely Notice of
Appeal from the following Orders entered by Bankruptcy Judge Catliota in Andresen’s bankruptcy
case as well as a related adversarial proceeding:
1. 	October 6, 2006, Order Granting Motion to Sell Property of Estates Free and
Clear of Liens and Other Interests (824 Stockton Avenue, Cape May, New
Jersey 08204) and Approving Broker’s Commission ( Andresen v. Rosen, No.
01-25370-TJC (D. Md. Oct. 6, 2006); and
2. 	October 27, 2006, Restraining Order temporarily enjoining Andresen from
“filing or recording any suits, notices, deeds or any other documents, or
taking any other actions, which, in any way, relate to or affect the property
known as 824 Stockton Avenue, Cape May, NJ 08204 . . . .” Rosen v.
Andresen, Adv. No. 06-1753 (D. Md. Oct. 27, 2006).
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1 Andresen’s Amended Notice of Appeal names a fifth Order denying his
Motion to Proceed in forma pauperis. However, he does not offer the date of the Order and the
Bankruptcy Clerk has informed the Court that, although a motion to proceed in forma pauperis is
pending in Andresen’s bankruptcy case, the Bankruptcy Court has not denied the motion.
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On November 13, 2006, Andresen amended his Notice of Appeal to add the following Orders
entered by the Bankruptcy Court in the same cases.
3. 	November 1, 2006, Order Granting Motion for Temporary Restraining Order
and Preliminary Injunction enjoining him from the same (Rosen v. Andresen,
Adv. No. 06-1753 (D. Md. Nov. 1, 2006)); and
4. 	November 7, 2006, Order Overruling Debtor’s Oral Objection to Claim of
First Penn Bank (Claim 27 as Amended by Claim 28). Andresen v. Rosen,
No. 01-25370-TJC (D. Md. Nov. 7, 2006). 1
Under Bankruptcy Rule 8006, Andresen should have designated items to be included
in the record on appeal of all four orders within ten days of the relevant Notice of Appeal (i.e., by
November 13, 2006, for Orders #1 and #2 above and by November 23, 2006, for Orders #3 and #4
above). Andresen failed to do this for any of his appeals, and on November 21, 2006, the Court
ordered him to show cause why his appeals should not be dismissed for failure to designate the
record.
In a letter dated November 21, 2006, Andresen responded to the Show Cause Order,
explaining that his failure to designate the record resulted primarily from physical infirmities. On
December 6, 2006, filed a designation of the record along with a Motion to proceed in forma
pauperis. In a Praecipe attached to his designation of the record, Andresen requested that the Clerk
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refrain from forwarding the record until after the Court ruled upon his Motion to proceed in forma
pauperis. 	He explained his request by indicating that he had designated certain transcripts to
forward to the Court as part of the record that he would ask the Court Reporter to prepare only after
a ruling on his Motion, impliedly because he anticipated a favorable ruling and sought to avoid
bearing the cost for the transcript preparation as required by Bankruptcy Rule 8006.
At that time, the Court noted a striking similarity between Andresen’s request and
one that he had made to the Court in a previous appeal from decisions made by Bankruptcy Judge
Alquist in this same bankruptcy case and in a different but related adversarial proceeding, Andresen
v. Rosen, Adversary No. 03-3179-NVA. See Andresen v. Rosen, No. 05-3164-PJM (D. Md. Sept.
26, 2006). The Court had dismissed Andresen’s previous appeal for failure to file a timely brief, a
deficiency that Andresen had attempted to justify by arguing that the brief’s tardiness was
precipitated by a delay in the Court Reporter’s preparation of transcripts -- despite the fact that
Andresen himself had asked the Court Reporter to delay transcript preparation pending a ruling upon
his Motion to Proceed in forma pauperis. The Court had found that Andresen, having been “dilatory
to an excess” and having failed to request a reasonable extension of time to file his brief, had acted
either in bad faith or, at least, with gross negligence.
Finding a suspicious resemblance between Andresen’s actions in the present appeals
and his disingenuous actions in the previous appeal, the Court directed Appellee-Trustee Rosen to
inform it of his position as to the bona fides of Andresen’s current request for in forma pauperis
status; whether his current actions were taken for purposes other than delay, and whether the instant
appeals should be subject to dismissal for his failure to timely designate the record. 	Rosen
responded in a letter dated December 28, 2006:
The Trustee believes that Mr. Andresen’s current request for in forma pauperis status
is his latest attempt at delay. Judge Alquist in her Memorandum of Decision dated
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September 18, 2005, . . . found that “the Debtor [Andresen] is not credible and is
schooled in obfuscation and delay.” Moreover, . . . [t]he Trustee believes that Mr.
Andresen has the resources to pursue an appeal. Further, in the four years that the
Trustee has overseen Mr. Andresen’s Chapter 7 case, every adverse ruling of the
Bankruptcy Court is first sought to be reconsidered, and then appealed. 	Mr.
Andresen seeks leverage and delay in the case, which is perplexing because given
the amount of assets versus the claims in the case, Mr. Andresen will never see any
surplus for himself. For those reasons and because the appeal is without merit, the
appeal should be dismissed for Debtor’s failure to timely designate the record.
The Court is persuaded by Rosen’s assessment of Andresen’s present motivations and his conclusion
that these appeals should be dismissed.
II.
While the Court recognizes that dismissal for failure to timely designate the record
is a “harsh sanction” that should not be “imposed lightly,” In re Serra Builders, Inc., 970 F.2d 1309,
1311 (4th Cir. 1992), the Court finds it appropriate in this case. In re Serra Builders, Inc. sets out
the relevant considerations:
[Before dismissing a bankruptcy appeal for failure to timely designate the record] the
district court must take at least one of the following steps: (1) make a finding of bad
faith or negligence; (2) give the appellant notice and an opportunity to explain the
delay; (3) consider whether the delay had any possible prejudicial effect on the other
parties; or (4) indicate that it considered the impact of the sanction and available
alternatives.
Id. 	All of these considerations point toward dismissal of these appeals. 	The Court has given
Andresen an opportunity to explain his delay and has found his explanation wanting. His tortured
attempts to stave off unfavorable rulings by the Bankruptcy Court have followed a pattern better
explained by his bad faith dealings in this case than by his purported failing health. The Trustee
meanwhile has been prejudiced in the disposition of estate assets, and no alternative sanction can
fairly address Andresen’s omissions. Dismissal of his appeals is the most appropriate sanction.
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III.
Accordingly, the Court sua sponte DISMISSES Andresen’s appeal.
A separate Order will Issue.
/s/
PETER J. MESSITTE
January 19, 2007 	UNITED STATES DISTRICT JUDGE
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