Estate of Arlene Townsend v. Shumaker Loop & Kendrick, LLP

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

IN RE:

FUNDAMENTAL LONG TERM CARE, INC.

Debtor.

______________________________/

ESTATE OF ARLENE TOWNSEND,

ESTATE OF ELVIRA NUNZIATA,

ESTATE OF JAMES HENRY JONES,

ESTATE OF JOSEPH WEBB,

ESTATE OF OPAL LEE SASSER,

and ESTATE OF JUANITA JACKSON,

Appellants,

Case No. 8:19-cv-2176-T-33

v. Bankr. No. 8:11-bk-22258-MGW

SHUMAKER, LOOP & KENDRICK, LLP,

Appellee.

______________________________/

ORDER

This matter comes before the Court pursuant to Appellee

Shumaker, Loop & Kendrick, LLP’s September 20, 2019, Motion

to Strike, in part, the Notice of Appeal, Designation of

Record and Statement of Issues filed by Appellants. (Doc. #

3). Appellants — the Estates of Arlene Townsend, Elvira

Nunziata, James Henry Jones, Joseph Webb, Opal Lee Sasser,

and Juanita Jackson (the “Estates”) — responded in opposition

on October 4, 2019. (Doc. # 8). For the reasons given below,

the Motion is granted in part and denied in part.

I. Background

As this Court has previously noted, the underlying

Chapter 7 bankruptcy proceeding has been ongoing for several

years. A recitation of its history is not necessary here.

Attorney Steven Berman, Esq., of Shumaker, Loop &

Kendrick, served as the Chapter 7 Trustee’s special

litigation counsel from 2012 to 2015. (Doc. ## 3, 9-52, 10-

141). On June 4, 2018, the Estates filed a Motion to

Disqualify Berman and Shumaker as counsel to the Chapter 7

Trustee Nunc Pro Tunc and for Disgorgement of Compensation

(the “Disqualification Motion”). (Doc. # 10-577). In the

Disqualification Motion, the Estates accused Shumaker and

Berman of (1) holding interests adverse to the bankruptcy

estate, in violation of Section 327 of the Bankruptcy Code;

and (2) failing to disclose certain connections they had to

entities involved in the bankruptcy litigation, in violation

of Federal Rule of Bankruptcy Procedure 2014. (Id. at 26-33).

On that basis, the Estates sought Berman’s and Shumaker’s

disqualification nunc pro tunc to the date of its original

employment in 2012 and disgorgement of all past and future

compensation. (Id. at 33-35).

On the same date that they filed the Disqualification

Motion, the Estates also filed a Motion to Withdraw the

Reference on the Contested Matter Initiated by the

Disqualification Motion. (Doc. # 10-612). That motion

asserted that Edward Comey, law clerk for the presiding judge

in the bankruptcy matter, the Honorable Michael G.

Williamson, was a former associate at Shumaker and that his

prior association with the firm might lend him unfair

extrajudicial knowledge. (Id. at 4-9). Accordingly, the

Estates requested that the District Court rule on the

Disqualification Motion. (Id. at 11). The District Court

denied the Motion to Withdraw the Reference, finding that the

bankruptcy judge’s determination of the Disqualification

Motion “promotes the efficient use of judicial resources and

advances uniformity in bankruptcy procedure.” In re

Fundamental Long Term Care, Inc., No. 8:18-cv-1602-T-23, 2018

WL 5717425, at *1 (M.D. Fla. Nov. 1, 2018).

On January 17, 2019, the Estates filed a Motion for

Recusal (the “Recusal Motion”), seeking the recusal of Judge

Williamson and Mr. Comey from the case in its entirety. (Doc.

# 11-10). Specifically, the Estates argued that Mr. Comey had

a conflict of interest because he previously worked for

Shumaker and his wife was currently a partner at that firm.

(Id. at 1-2, 5-6). They insisted that Mr. Comey’s bias should

be imputed to Judge Williamson. (Id. at 8).

On June 7, 2019, Judge Williamson granted Appellants’

motion to recuse in part and denied it in part (the “Recusal

Order”). (Doc. # 11-38). The Bankruptcy Court noted that the

Estates based their Recusal Motion solely on Mr. Comey’s links

to Shumaker, rather than any direct conflicts on the part of

the judge, and it explained that Mr. Comey had been screened

from the case as of the date the Estates filed the

Disqualification Motion. (Id. at 11-12, 17). Further, the

Bankruptcy Court found that Mr. Comey’s conflicts should not

be imputed to Judge Williamson because there had been no

substantive participation by Mr. Comey on the

Disqualification Motion and the Estates had shown no actual

bias by the judge. (Id. at 12-13, 17). Thus, Judge Williamson

declined to recuse himself but isolated Mr. Comey from the

case. (Id. at 19).

Dissatisfied with this result, the Estates sought an

interlocutory appeal of the Recusal Order. In re Fundamental

Long Term Care, No. 8:19-cv-1564-T-33, 2019 WL 3429546, at *1

(M.D. Fla. July 30, 2019). On July 30, 2019, this Court denied

the Estates leave to appeal the Recusal Order, finding that

the Estates had failed to demonstrate any of the three

elements required for an interlocutory order. Id. at *3.

In addition, on June 21, 2019, the Estates filed a

petition for a writ of mandamus with the District Court,

seeking to have the District Court compel Judge Williamson to

recuse himself from the entire underlying Chapter 7

bankruptcy proceeding. In re: Estate of Juanita Jackson, et

al., Case no. 8:19-cv-1517-MSS-TGW, Doc. # 1. On September

27, 2019, Judge Scriven denied the petition. Id., Doc. # 16.

On August 21, 2019, the Bankruptcy Court entered its

order on the Disqualification Motion, denying

disqualification and finding that Shumaker did not violate

Section 327 of the Bankruptcy Code or Bankruptcy Rule 2014

(the “Disqualification Order”). (Doc. # 11-52).

According to the September 4, 2019, Notice of Appeal,

the Estates seek to appeal two orders entered by the

Bankruptcy Court: (1) the August 21, 2019, Disqualification

Order and (2) the June 7, 2019, Recusal Order. (Doc. # 1).

Shumaker now moves to strike the Notice of Appeal to the

extent it attempts to appeal the Recusal Order. (Doc. # 3).

Shumaker also moves to strike the corresponding Appellants’

Designation of Record and Statement of Issues to the extent

those documents reflect an attempt to appeal the Recusal

Order. (Id. at 1-2, 12). The Estates have responded, and the

Motion is ripe for review.

II. Discussion

Shumaker argues that the Estates should not be allowed

to “bootstrap” an appeal of the interlocutory Recusal Order

to the appeal of the Disqualification Order because (1) this

Court already denied the Estates leave to file an

interlocutory appeal of the Recusal Order, and (2) the Recusal

Order is not so inextricably intertwined with the

Disqualification Order that the Court may exercise pendent

appellate jurisdiction over the Recusal Order. (Doc. # 3 at

9, 10).

For their part, the Estates argue that the Motion to

Strike should be denied for three reasons. (Doc. # 8 at 3).

First, the Recusal Order was an interlocutory order that

“merged” with the final, appealable Disqualification Order.

(Id. at 3, 4-6). Second, the Estates argue that this Court

has pendent appellate jurisdiction over the Recusal Order

because that Order is “inextricably intertwined” with the

Disqualification Order and review of the Recusal Order is

“necessary to ensure meaningful review” of the

Disqualification Order. (Id. at 3, 6-8). Finally, the Estates

contend that this Court’s denial of their earlier motion for

leave to file an interlocutory appeal is not dispositive of

the issue. (Id. at 4, 8-10).

A. “Merger” of Recusal Order into Appealable Order

A party may appeal, as of right, to the district court

from final “judgments, orders, and decrees” of the bankruptcy

court. 28 U.S.C. § 158(a)(1). The parties agree that the

Recusal Order here is an interlocutory order and that the

Disqualification Order is a final, appealable order.

The Estates argue that, “in normal civil proceedings []

‘an appeal from a final judgment draws in question all prior

non-final orders and rulings which produced the judgment.’”

(Doc. # 8 at 4) (citing Toomey v. Wachovia Ins. Servs., Inc.,

450 F.3d 1225, 1229 n.2 (11th Cir. 2006)). Indeed, in the

context of an appeal from the district court to the Eleventh

Circuit, a district judge’s refusal to recuse himself or

herself may only be “complained of on appeal from final

judgment.” Diversified Numismatics, Inc. v. City of Orlando,

949 F.2d 382, 384 (11th Cir. 1991).

Of course, while it may be the case generally that a

district court’s final order merges with all prior

interlocutory orders, and thus appeal must be had of all

orders at the same time, bankruptcy court orders are of a

different breed. In the context of bankruptcy proceedings,

“finality” is given a flexible interpretation. See In re

Donovan, 532 F.3d 1134, 1136 (11th Cir. 2008). So long as

the order completely resolves all issues pertaining to a

discrete claim or controversy within the bankruptcy

proceedings, it will be deemed “final.” Id. at 1136-37. This

flexible standard, however, does not mean that the district

court has jurisdiction over every order the bankruptcy court

issues. Id.

Even if this Court were more amenable to the Estates’

general merger argument, the Court disagrees with the

Estates’ formulation of the argument — that the Recusal Order

was an earlier, interlocutory order that helped to “produce”

the Disqualification Order. (Doc. # 8 at 5). Indeed, if the

Court were to adopt the reading urged by the Estates, the

Recusal Order would have “produced” every single order

flowing thereafter in the bankruptcy proceeding. Under these

circumstances, the Court does not believe that the Recusal

Order “merged” with the Disqualification Order.

B. Pendent Appellate Jurisdiction

Upon entry of a final order by the Bankruptcy Court, a

party may appeal to the United States District Court pursuant

to 28 U.S.C. § 158(a). The District Court functions as an

appellate court in reviewing decisions of the Bankruptcy

Court. Varsity Carpet Servs., Inc. v. Richardson (In re

Colortex Indus., Inc.), 19 F.3d 1371, 1374 (11th Cir. 1994).

Other district courts have utilized pendent appellate

jurisdiction when deciding whether to exercise jurisdiction

over non-final orders of the bankruptcy court. See Credit One

Fin. v. Anderson (In re Anderson), 550 B.R. 228, 235-36

(S.D.N.Y. 2016) (refusing to exercise pendent jurisdiction

over bankruptcy court’s interlocutory orders where those

orders were not inextricably intertwined with a reviewable

order); see also Conopco, Inc. v. Heartland Processing, LLC,

no. 1:07-cv—813-JDT-TAB, 2007 WL 4580036, at *3-4 (S.D. Ind.

Dec. 21, 2007) (holding that, because the issues to be

resolved in both appeals were distinct and could be decided

independently, the exercise of pendent appellate jurisdiction

over an interlocutory order of the bankruptcy court would not

be appropriate). Thus, the Court will use the law of pendent

appellate jurisdiction, as set forth by the U.S. Supreme Court

and the Eleventh Circuit, to determine if it may exercise

pendent appellate jurisdiction in this matter.

“Pendent appellate jurisdiction is present when a

nonappealable decision is ‘inextricably intertwined’ with the

appealable decision or when ‘review of the former decision is

necessary to ensure meaningful review of the latter.’” King

v. Cessna Aircraft Co., 562 F.3d 1374, 1379 (11th Cir. 2009)

(internal alteration omitted). Although the question of

whether to exercise pendent appellate jurisdiction is

discretionary, an appeals court will do so “only under rare

circumstances” and “in only limited factual scenarios.” Id.

at 1379, 1380; Summit Med. Assocs., P.C. v. Pryor, 180 F.3d

1326, 1335 (11th Cir. 1999); see also Swint v. Chambers Cty.

Comm’n, 514 U.S. 35, 49-50 (1995) (cautioning that “a rule

loosely allowing pendent appellate jurisdiction would

encourage parties to parlay [appealable] collateral orders

into multi-issue interlocutory appeal tickets”). Accordingly,

“such jurisdiction [does] not exist when resolution of the

nonappealable issue [is] not necessary to resolve the

appealable one.” King, 562 F.3d at 1380. Therefore, where a

court can consider and decide the appealable issue or order

without addressing or considering the nonappealable issues or

orders, an exercise of pendent appellate jurisdiction is not

warranted. Id.

Thus, this Court may properly exercise pendent

jurisdiction over the Recusal Order only if the issues

considered and decided therein are “inextricably intertwined”

with the issues considered and decided in the

Disqualification Motion or if review of the Recusal Order is

necessary to ensure meaningful review of the Disqualification

Order. See King, 562 F.3d at 1379.

In the Recusal Order, the Bankruptcy Court was

considering whether Judge Williamson and/or his law clerk,

Mr. Comey, must be disqualified from the underlying

bankruptcy case under 28 U.S.C. § 455 and Federal Rule of

Bankruptcy Procedure 5004. See (Doc. ## 11-10, 11-38).

A federal judge, including a bankruptcy judge, must

recuse himself “in any proceeding in which his impartiality

might reasonably be questioned.” 28 U.S.C. § 455(a); see also

Fed. R. Bankr. P. 5004(a) (contemplating that bankruptcy

judges shall be governed by Section 455). A bankruptcy judge

must also recuse himself when, among other things: (1) he has

“personal knowledge of disputed evidentiary facts concerning

the proceeding”; (2) a lawyer with whom he previously

practiced law served during such association as a lawyer on

the matter; (3) he or his spouse “has a financial interest in

the subject matter in controversy or in a party to the

proceeding, or any other interest that could be substantially

affected by the outcome of the proceeding”; or (4) his spouse

is acting as a lawyer in the proceeding or the judge knows

his spouse has an interest that could be substantially

affected by the outcome of the proceedings. 28 U.S.C. §

455(b)(1),(2),(4),(5). As a general matter, “[i]f a clerk has

a possible conflict of interest, it is the clerk, not the

judge who must be disqualified.” Byrne v. Nezhat, 261 F.3d

1075, 1101–02 (11th Cir. 2001), abrogated on other grounds by

Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146 (11th Cir.

2011).

In issuing the Recusal Order, the Bankruptcy Court

considered these legal principles, along with Mr. Comey’s

associations with Shumaker. See (Doc. # 11-38). The

Bankruptcy Court also considered numerous questions, such as

whether Mr. Comey ought to be screened from any work on the

then-pending Disqualification Motion, whether Mr. Comey

should have been previously screened from working on the

bankruptcy case at all, whether Mr. Comey’s potential

conflicts of interest should be imputed to Judge Williamson,

whether the Estates had shown any actual bias on the part of

Judge Williamson, whether the Recusal Motion was filed to

obtain a strategic advantage, and whether the rendered remedy

(of isolating Mr. Comey from the case) was appropriate. See

(Id.).

In contrast, in the Disqualification Order, the

Bankruptcy Court considered whether Berman and Shumaker were

not “disinterested” persons and held interests adverse to the

bankruptcy estate and/or its creditors, in violation of 11

U.S.C. § 327(a) and whether Berman and Shumaker failed to

disclose certain connections as required by Federal Rule of

Bankruptcy Procedure 2014. (Doc. ## 10-577, 11-52).

The Bankruptcy Code allows trustees to hire

professionals, including attorneys, with court approval. 11

U.S.C. § 327(a). These professionals must not “hold or

represent an interest adverse to the estate” and must be

“disinterested.” Id. The definition of a “disinterested

person” includes a person that “is not a creditor” and “does

not have an interest materially adverse to the estate . . .

by reason of any direct or indirect relationship to,

connection with, or interest in, the debtor, or for any other

reason.” 11 U.S.C. § 101(14). The phrase “interest materially

adverse to the estate” is not defined by the Bankruptcy Code.

The courts, however, have defined the phrase as follows:

possessing, or serving as an attorney for a person

possessing, either an ‘economic interest that would

tend to lessen the value of the bankruptcy estate

or that would create either an actual or potential

dispute in which the estate is a rival claimant or

a predisposition under the circumstances that

render such a bias against the estate.’

In re Prince, 40 F.3d 356, 361 (11th Cir. 1994) (internal

ellipses omitted).

Thus, in ruling on the Disqualification Motion, the

Bankruptcy Court evaluated these legal principles alongside

the threads connecting Berman and Shumaker to their longtime

clients, whose interests were allegedly adverse to the

estate’s creditors, this longtime client’s potential

liability to the bankruptcy estate, and whether Berman and

Shumaker’s omission of this representation from its initial

disclosures violated Rule 2014. (Doc. # 11-52).

Here, this Court can review the Disqualification Order

without relying on any of the issues raised in the Recusal

Order. Whether Judge Williamson should have recused himself

from the bankruptcy proceeding in general is a separate

question from whether Shumaker violated Section 327 of the

Bankruptcy Code or Bankruptcy Rule 2014 through its

representation of a long-time client. As described above,

the two Orders deal with entirely separate facts and

principles of law.

What’s more, resolution of the propriety of the Recusal

Order is not necessary to the disposition of the appeal of

the Disqualification Motion. See Summit Med. Assocs., 180

F.3d at 1335 (holding that pendent jurisdiction did not exist

when resolution of the nonappealable issue was not necessary

to resolve the appealable one); Moniz v. City of Fort

Lauderdale, 145 F.3d 1278, 1281 n. 3 (11th Cir. 1998)

(“Because we may resolve the qualified immunity issue in this

case without reaching the [issue of standing], . . . we

conclude that the latter issue . . . does not fall within our

pendent appellate jurisdiction under Swint.”); Harris v. Bd.

of Educ. of the City of Atlanta, 105 F.3d 591, 595 (11th Cir.

1997) (declining pendent appellate jurisdiction because the

qualified immunity issue could be resolved “without reaching

the merits of the remaining questions” raised by the parties).

The cases relied on by the Estates in support of their

pendent-jurisdiction argument are inapposite and

distinguishable. (Doc. # 8 at 6-8). In Chudasama v. Mazda

Motor Corp., the district court granted a motion to compel

certain discovery (the “compel order”) and then later entered

a sanctions order for alleged violations of the compel order

(the “sanctions order”). 123 F.3d 1353, 1361-64 (11th Cir.

1997). On appeal, the Eleventh Circuit determined that it had

jurisdiction to review the entire sanctions order and,

“[b]ecause the sanctions order was issued in part for Mazda’s

purported violation of the district court’s compel order,

[it] also review[ed] that earlier order.” Id. at 1365. The

Eleventh Circuit reviewed the compel order even though the

compel order was “clearly an interlocutory order over which

[the court] would not normally have jurisdiction.” Id.

Pendent appellate jurisdiction existed over the compel order

because “‘[m]eaningful review’ of the sanctions order clearly

require[d] review of the compel order [because] . . . the

propriety of the sanctions order depend[ed] in large part on

the propriety of the compel order.” Id.; see also Id. at 1366

(explaining that, in evaluating whether a district court

abused its discretion in imposing sanctions against a party

for violating a court order, “we believe that an important

factor is whether the entry of that order was itself an abuse

of discretion”).

And in Fox v. Tyson Foods, Inc., the dispute arose from

an employment suit filed by workers at a Tyson plant in

Albertsville, Alabama. 519 F.3d 1298, 1300 (11th Cir. 2008).

The Albertsville employees moved to have the case certified

as a collective action, but the district court denied the

motion. Id. at 1301. After that suit was filed, 161 employees

or former employees of a Tyson plant in Blountsville, Alabama,

moved to intervene in the litigation. Id. The district court

denied their motion, and the petitioners filed an

interlocutory appeal of the denial of their motion to

intervene. Id.

The Eleventh Circuit explained that, when the district

court denied the motion to intervene, it relied in part on a

factual finding from its denial of certification of a

collective action. Id. Thus, because “a partial review of the

collective action order is necessary to ensure meaningful

review of the denial of intervention,” the Eleventh Circuit

could properly exercise pendent appellate jurisdiction over

the applicable factual finding in the collective action

order. Id. at 1302.

Chudasama and Fox serve only to highlight how the

exercise of pendent appellate jurisdiction would be

inappropriate in this case. In both of those cases, review of

the interlocutory order was essential to a fair disposition

of the properly appealable order because the appealable order

relied on the reasoning or findings of the interlocutory

order. The same cannot be said here. See King, 562 F.3d at

1380 (explaining that pendent appellate jurisdiction does not

exist “when resolution of the nonappealable issue [is] not

necessary to resolve the appealable one.”).

Here, the Recusal Order is not inextricably intertwined

with the appealable Disqualification Order nor is the former

decision necessary to ensure meaningful review of the latter.

Chudasama, 123 F.3d at 1365. Thus, the Court declines to

exercise pendent appellate jurisdiction over the Recusal

Order. The Court strikes the Appellants’ Notice of Appeal to

the extent that it names the Recusal Order as an appealable

order.

C. Denial of Interlocutory Appeal Not Dispositive

Finally, the Estates argue that this Court’s prior

denial of their motion for interlocutory appeal of the Recusal

Order does not preclude the Court from reviewing that Order

now, as a ride-along to the Disqualification Motion. (Doc. #

8 at 8-10). The Court agrees with the Estates that the issue

of pendent appellate jurisdiction is a separate question from

whether an interlocutory order may properly be appealed under

28 U.S.C. § 1292(b). See In re Anderson, 550 B.R. at 235-41

(determining whether certain issues in a bankruptcy appeal

could be raised either through pendent appellate jurisdiction

or through the granting of interlocutory review). This does

not change the Court’s conclusion, however, that neither

doctrine serves to bring the Recusal Order before the Court

at this time.

D. Motion to Strike the Designation of Record and

Statement of Issues

Shumaker also requests that this Court strike the

Appellants’ Designation of Record and Statement of Issues to

the extent that those documents relate to the Recusal Order.

(Doc. # 3 at 1-2). The Bankruptcy Rules dictate that:

If any difference arises about whether the record

accurately discloses what occurred in the

bankruptcy court, the difference must be submitted

to and settled by the bankruptcy court and the

record conformed accordingly. If an item has been

improperly designated as part of the record on

appeal, a party may move to strike that item.

Fed. R. Bankr. P. 8009(e)(1).

Rule 8009(e)(1) “leaves no doubt that any dispute over

designation of items must be adjudicated by the bankruptcy

court, and not the district court to which the appeal has

been assigned.” In re Digerati Techs., Inc., 531 B.R. 654,

659 (Bankr. S.D. Tex. 2015). The authority to strike items

from a record on appeal or a statement of issues rests within

the bankruptcy court’s jurisdiction. In re Nat’l Century Fin.

Enters., Inc., 334 B.R. 907, 914 (Bankr. S.D. Ohio 2005).

“This determination undoubtably assists the appellate process

as an appellate tribunal will not be burdened with sifting

through improper designations. As in this case where the

record originated from a proceeding before a bankruptcy

court, efficiency suggests that a dispute over such record

should be decided by the bankruptcy court.” Id.; see also In

re Ames Dep’t Stores, Inc., 320 B.R. 518, 520–21 (Bankr.

S.D.N.Y. 2005) (holding that the bankruptcy court is the

proper forum for a dispute over the contents of the record on

appeal, noting that “the bankruptcy court knows best was

before it and what it considered in making its ruling”).

The Bankruptcy Court is the proper venue for resolving

the Motion to Strike as it relates to the Appellants’

Designation of Record and Statement of Issues. Thus,

Shumaker’s Motion is denied without prejudice to the extent

it seeks to strike the Appellants’ Designation of Record and

Statement of Issues. This denial is without prejudice to

Shumaker’s ability to bring a similar motion to strike in the

Bankruptcy Court. See In re Nat’l Century Fin. Enters., 334

B.R. at 912 (“While the filing of a notice of appeal generally

divests a bankruptcy court of jurisdiction to proceed with

respect to matters raised by the appeal, actions in aid of

the appeal are not beyond its authority.” (citing In re

Barrick Grp., Inc., 100 B.R. 152, 154 (Bankr. D. Conn. 1989)).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Appellee Shumaker, Loop & Kendrick, LLP’s Motion to

Strike, in part, the Notice of Appeal, Designation of

Record and Statement of Issues (Doc. # 3) is GRANTED in

part and DENIED WITHOUT PREJUDICE in part.

(2) The Court STRIKES the Appellants’ Notice of Appeal (Doc.

# 1) to the extent that it names the June 7, 2019,

Recusal Order (Bankruptcy Court Docket No. 2219) as an

appealable order.

(3) To the extent that Shumaker’s Motion seeks to strike the

Designation of Record and Statement of Issues, the

Motion ig DENIED WITHOUT PREJUDICE to Shumaker’s ability

to file a similar motion before the Bankruptcy Court.

(4) Shumaker is directed to file status reports with this

Court every 30 days, reporting on whether and when it

has filed a motion to strike before the Bankruptcy Court

and the status of the Bankruptcy Court’s resolution of

the parties’ dispute.

(5) Once Shumaker either notifies the Court that it will not

file a motion to strike before the Bankruptcy Court or

once the Bankruptcy Court issues its ruling and the

amended record on appeal has been filed, this case may

proceed. This Court will not accept briefing or rule on

this matter until that time.

DONE and ORDERED in Chambers in Tampa, Florida, this

31st day of October, 2019.

tii2 9n. Henerby □□□

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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