In re: Bci Pancake House Inc. v. Morris, James, Hitchens & Williams

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-3130
IN RE: BCI PANCAKE HOUSE INC.;
BLUE COAT INN INC.;
PATRIOT ENTERPRISES LLC;
HOSPITALITY ORGANIZATIONAL
MANAGEMENT ENTERPRISES INC.,
Debtors
BCI PANCAKE HOUSE INC.;
BLUE COAT INN INC.;
PATRIOT ENTERPRISES LLC;
HOSPITALITY ORGANIZATIONAL
MANAGEMENT ENTERPRISES INC.,
Appellants
v.
MORRIS, JAMES, HITCHENS & WILLIAMS;
WILLIAM R. HITCHENS, JR.;
NORRIS P. WRIGHT;
PARKOWSKI NOBLE & GUERKE PA;
GEORGE F. GARDNER, III;
FIRST COMMERCIAL SERVICES INC.;
*STEPHEN J. MCCANN
MICHAEL B. JOSEPH,
Trustee
* (Dismissed as per the Court’s 12/26/02 Order)
(D.C. No. 02-cv-00097)

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No: 02-3131
IN RE: JOHN KOUTOUFARIS;
MARLENE KOUTOUFARIS,
Debtors
JOHN KOUTOUFARIS;
MARLENE KOUTOUFARIS;
ESTATE OF ERNEST V. KEITH,
Appellants
v.
MORRIS, JAMES, HITCHENS & WILLIAMS;
NORRIS P. WRIGHT
MICHAEL B. JOSEPH,
Trustee
(D.C. No. 02-cv-00278)
On Appeal from the United States District Court
for the District of Delaware
District Court Judge: The Honorable Gregory M. Sleet
Submitted Under Third Circuit L.A.R. 34.1(a)
July 24, 2003
Before: ALITO, FUENTES, and BECKER Circuit Judges
(Opinion Filed: August 18, 2003)

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OPINION OF THE COURT
FUENTES, Circuit Judge:
These consolidated appeals arise from two closely related adversary proceedings in
the Bankruptcy Court in the District of Delaware. After their malpractice claims against a
Wilmington law firm and two of its partners were dismissed on summary judgment in the
Bankruptcy Court, the Appellants appealed to the District Court. In both instances,
Appellants, who are represented by the same counsel, failed to file an opening brief on
appeal and neglected to request any extension. The District Court, in the exercise of its
discretion, separately dismissed those appeals for failure to prosecute. Appellants now
challenge those dismissals in these consolidated appeals. We review a district court’s
dismissal of a bankruptcy appeal “only for an abuse of discretion.” Jewelcor Inc. v. Asia
Commercial Co., 11 F.3d 394, 397 (3d Cir. 1994).
The Appellants claim that the District Court made two errors in dismissing their
appeals. First, they contend that the District Court failed to properly account for the
illness of one of their lawyers in making its decision. Second, they argue that the District
Court erred in finding that a conversion from Chapter 11 to Chapter 7 did not stay the
appeal.
We first note that the lawyer that the Appellants are trying to blame their failure
on, Henry Heiman, only served as local counsel in the case and eventually moved to

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withdraw because he disavowed the underlying factual predicate of the appeal - that he
had been ill and that illness prevented the appeal in the District Court from being
prosecuted. We further note that the Appellants have a history of ignoring their
obligations to the Bankruptcy Court and the District Court.
In any event, the Appellants raised the same arguments before the District Court in
opposition to the motions to dismiss and in a motion for reconsideration as they now raise
before us. After a careful review of the record and the Parties’ arguments, we conclude
that the District Court properly rejected these arguments and find no basis for disturbing
the District Court’s thorough and well-reasoned opinions. The District Court did not
commit an abuse of discretion in dismissing the appeals. Thus, we will affirm the
judgments for substantially the same reasons set forth in Judge Sleet’s opinions.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge

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