# Petition for Writ of Certiorari — Biddle Street Bistro, Inc. v. TLJ Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1681%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 946 ## Text he Suprewress (Claaw, Cus, : i\ \ FILER 021791 JUN 6 - 2003 No. In THE Supreme Court of the Anited States BIDDLE STREET BIstTRO, INC. , Petitioner Vs. TLJ Company, L.L.C. AND BREMEN BANK AND TRUST COMPANY, Respondents On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit PETITION FOR WRIT OF CERTIORARI Gary P. PAUL Counsel of Record BRINKER & Doyen, L.L.P. 120 SoutH CENTRAL AVENUE, SulTEe 700 CLayTON, Missouri 63105 (314)-863-6311 eo St. Louis Law Printing, Inc. 14239 Manchester Rd. Manchester, MO 63011 314-231-4477 (1) (2) QUESTIONS PRESENTED Whether the Federal Rules of Appellate Procedure require that a notice of appeal be signed for a United States Court of Appeals to have jurisdic- tion. Whether the filing of a timely Notice of Appeal signed only by pro se shareholders on behalf of their corporation is a fatal error that requires the corporation’s appeal to be dismissed. a yo PARTIES IN THE COURT BELOW Petitioner, Biddle Street Bistro, Inc., was a Defen- dant below. Biddle Street Bistro, Inc. has no parent companies or subsidiaries not wholly owned by the corporation. No publicly held company owns ten percent or more of the corporation’s stock. The corporation was wholly owned by shareholders Jeffery Eilers and Janet Y. Tennant. : Respondent, TLJ Company, L.L.C., was a Defen- dant below. TLJ Company, L.L.C. has no parent companies or subsidiaries not wholly owned by the corporation. No publicly held company owns ten percent or more of the TLJ Company, L.L.C. Respondent, Bremen Bank and Trust Company, was a Defendant below. The parent company of Bremen Bank and Trust Company is Bremen Bancorp, Inc. Bremen Bank and Trust Company has no subsidiaries not wholly owned by it and no publicly held company owns ten percent or more of it. No review is sought here as to the Plaintiff below, Allstate Insurance Company. — il— TABLE OF CONTENTS Questions Presented For Review .................00000. Parties in the Court Below ................c.ccccccssssscess Reference to Official and Unofficial Report of AES N ES OR a Jurisdictional Statement .................ccccccceeceeceeese Constitutional Provisions, Statutes and Regulations Involved .................cccccccssesesseees ROR MNIINS OE GINO CORIO... :0scscccsccscnvevecesvncosccsvosecess The United States Court of Appeals for the Eighth Circuit erred in dismissing Biddle Street Bistro’s notice of appeal for lack of jurisdiction for failure to file a valid notice of appeal because the notice of appeal met the requirements of Fed- eral Rule of Appellate Procedure 3(a) in that it specified the parties taking the appeal, designated the judgment being appealed, and named the Court to which the appeal was taken; Federal Rule of Appellate Procedure 3(a) contains no jurisdictional mandate that a notice of appeal contain any signature to be valid II. —_ pew The United States Court of Appeals for the Eighth Circuit erred in denying Biddle Street Bistro’s motion to submit corrected notice of appeal and adopt pleadings previously filed pro se because Biddle Street Bistro promptly sought to correct the omission of a signature of counsel after the Clerk called to the attention of Biddle Street Bistro the alleged defect in the notice of appeal in that Federal Rule of Civil Procedure 11(a) provides that an unsigned paper shall be stricken unless the omission of the signature is corrected after being called to the attention of the attorney or — V-— Appendix Plaintiff Allstate Insurance Company’s Complaint for Interpleader Pursuant to RENEE DF enevsnniiosnniiesiibedtiandna ican tcmne tara A-1 United States District Court, Eastern District of Missouri, Eastern Division’s Order Granting Bremen’s and TLJ’s Motions for Summary Judgment ...............ccsccccesseeessseeees A-5 Biddle Street Bistro’s Notice of Appeal to a Court of Appeals from a Judgment or Order of a District Court ..............ccccscsscssoree A-8 November 18, 2002 letter from the Clerk of the Eighth Circuit Court of Appeals to Jeffery Eilers and Janet Y. Tennant...................... A-10 Appellant Biddle Street Bistro’s Motion for Leave to File Pleadings and Briefs Previously Filed Pro Se .............cccccsssessseeees A-12 Appellant Biddle Street Bistro’s Motion to Submit Corrected Notice of Appeal and Adopt Pleadings Previously Filed Pro Se... A-15 Memorandum in Support of Appellant Biddle Street Bistro’s Motion to Submit Corrected Notice of Appeal and Adopt Pleadings Previously Filed Pro Se ...............ccccssessseeeees A-77 TLJ Company L.L.C. and Bremen Bank and Trust Company’s Memorandum in Opposition to Biddle Street Bistro, Inc.’s NS SE RAID su nnkskaiicncsncusenisdcaleciininn A-85 Biddle Street Bistro, Inc.’s Reply to TLJ and Bremen’s Memorandum in Opposition to BSB’s Motion for Leave .............ccccccccceseeesees A-91 ame YY} ame United States Court of Appeals for the Eighth Circuit’s Judgment dated February 12, PEE Kécdtiencesnceetareesiieecaaeemaaia A-95 Petition for Rehearing by Panel......................04. A-96 United States Court of Appeals for the Eighth Circuit’s Denial of Petition for Rehearing by Panel dated March 12, 2008 .................. A-110 — vii— TABLE OF AUTHORITIES Cases Page AAA Venetian Blind Sales. Inc. v. Beaufieu of America. Inc., 124 F.3d 196 (6% Cir. 1997). 13 Anunicaion v. West Capital Financial Services, 97 F.3d 1458 (9™ Cir. 1996)..............ccccecceees 13 Becker v. Montgomery, 532 U.S. 757, 121 S.Ct. EE SED snensndessiecbislenintvenniiiinnbbacendsentes 10, 11 Bigelow v. A & A Reality Limited, 170 F.3d BAGS (GER Cir. 190B)....c..cnrereescorcescccsscoves 12, 13 Instituto De Educacion Universal Corp. v. United States Department of Education, Oe FG 1G (1% Cir, BCD) nciccoroccocesocevesevecsses 13 K.M.A., Inc. v. General Motors Acceptance Corp., 652 F.2d 398 (5 Cir. 1981)..............ccc..00008 13 Lewis v. Lenc-Smith Manufacturing Co., 784 Fe ee CE GA TI) vcnnesventitenvevsenensononenanen 13 Smith v. Barry, 502 U.S. 244, 112 S.Ct. 678 GE cosivivssiiciesiniichclidiekunlesiniedeclarbatiane leona 10 Statutes Federal Rules of Appellate Procedure; Rule 3 (idiiiiiaaaidtaainitiaindhehaldaiaiadaaiiinasteaibiaaaaiie 1,2, 10, 11 Federal Rules of Civil Procedure; Rule 11 siantetnenenesiaieaaeaeaeadiniseaaeidanaaammeenamnaaiandadais 2-5, 10, 11, 12 REFERENCE TO OFFICIAL AND UNOFFICIAL REPORT OF OPINIONS There is no official report of the opinions or orders entered in this case. The order of the Eighth Circuit Court of Appeals denying rehearing is set forth in the appendix at page A-110. The judgment of the Eighth Circuit Court of Appeals denying appellants motion for leave to submit a corrected notice of appeal and to adopt pleadings previously filed pro se, and dismissing ap- peal for lack of jurisdiction for failure to file a valid notice of appeal is set forth in the appendix at page A-95. JURISDICTION The Petitioner filed its Petition for Rehearing by Panel on February 25, 2003. The Eighth Cir¢uit denied Petitioner’s Petition for Rehearing on March 12, 2003. This petition is being filed within 90 days of the Eighth Circuit’s order denying the petition for rehearing by panel pursuant to Supreme Court Rule 13. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. Section 1254. STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED Federal Rule of Appellate Procedure 3(c) provides. (1) The notice of appeal must: (A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as “all plaintiffs,” “the defendants,” “the plain- — tiffs A, B, et al.,” or “all defendants except bt (B) designate the judgment, order, or part thereof being appealed; and (C) name the court to which the appeal is taken. (2) Apro se notice of appeal is considered filed on behalf of the signer and the signer’s spouse and minor children (if they are parties), unless the notice clearly indicates otherwise. (3) In aclass action whether or not the class has been certified, the notice of appeal is sufficient if it names one person qualified to bring the appeal as representative of the class. (4) An appeal must not be dismissed for informal- ity of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice. (5) Form 1 in the Appendix of Forms is a sug- gested form of a notice of appeal. Federal Rule of Civil Procedure 11 provides: (a) Signature. Every pleading, written motion and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is —_ corrected promptly after being called to the atten- tion of the attorney or party. (b) Representations to the Court. By present- ing to the court (whether by signing, filing, submit- ting, or later advocating) a pleading, written mo- tion, or other paper, an attorney or unrepresented. party is certifying that to the best of that person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnec- essary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal con- tentions therein are warranted by the existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual conten- tions have evidentiary support or, if specifi- cally so identified, are likely to have eviden- tiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are war- ranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, —_ oo or parties that have violated subdivision (b) or are responsible for the violation. (1) How Initiated (A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately cor- rected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees. (B) On Court’s Initiative. On its own ini- tiative, the court may enter an order de- scribing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto. (2) Nature of Sanction; Limitations. A sanc- tion imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by = : others similarly situated. Subject to the limi- tations in subparagraphs (A) and (B), the sanc- tion may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and war- ranted for effective deterrence, an order di- recting payment to the movant of some or all of the reasonable attorneys’ fees and other ex- penses incurred as a direct result of the viola- tion. (A) Monetary sanctions may not be awarded against a represented party fora violation of subdivision (b)(2). (B) Monetary sanctions may not be awarded on the court’s initiation unless the court issues its order to show cause before a voluntary dismissal or settle- ment of the claims made by or against the party which is, or whose attorneys are, to be sanctioned. (3) Order. When imposing sanctions, the court shall describe the conduct determined to con- stitute a violation of this rule and explain the basis for the sanction imposed. (d) Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclo- sures and discovery requests, responses, objec- tions, and motions that are subject to the provi- sions of Rules 26 through 37. _— STATEMENT OF THE CASE Biddle Street Bistro: (hereafter BSB) was a corpora- tion created by its sole shareholders Janet Y. Tennant and Jeffrey Eilers to run a restaurant located at 220 Biddle Street in the City of St. Louis. BSB operating under the name J. Tennant Construction owned the property on which the restaurant was located. In 1997, due to financial difficulties, BSB entered into an agree- ment with TLJ Company, L.L.C. (hereafter TLJ) wherein BSB transferred the deed to the property to TLJ in exchange for a commercial lease with an option to re-purchase the property. A condition of this lease was that BSB had to provide premises liability insur- ance to protect the real estate, and list TLJ and TLJ’s mortgagee Bremen Bank and Trust Company (hereaf- ter Bremen) as loss payees. BSB purchased the re- quired coverage from Allstate Insurance Company. The premises liability insurance policy provided $100,000.00 in coverage for personal property damage, and $500,000.00 in coverage for building damage. A dispute arose between TLJ and BSB, and TLJ refused to grant an extension to BSB’s lease. After TLJ refused to recognize its contract with BSB, BSB con- tacted its insurance agent and asked for TLJ and Bremen to be removed as named payees. BSB then filed suit in the Circuit Court for the City of St. Louis to enforce its contractual right for an extension of the lease. Unknown to BSB, representatives of TLJ contacted BSB’s insur- ance agent and requested to be put back on BSB’s policy as named payees. The insurance agent complied with TLJ’s request without notifying BSB. While BSB’s suit to enforce its lease with TLJ was pending the property was destroyed by fire. Allstate Insurance Company filed an interpleader suit in the oe, poe United States District Court, Eastern District of Mis- souri, Eastern Division. BSB was represented by coun- sel licensed to practice before the Eastern District. BSB’s counsel filed an answer and motion for partial summary judgment for the $100,000.00 personal prop- erty coverage. The district court awarded the entire $100,000.00 of the personal property coverage to BSB. After it was awarded $100,000.00 for the personal property policy limits, despite repeated and diligent efforts, BSB’s shareholders were unable to contact their counsel of record. The district court then granted TLJ’s and Bremen’s motions for summary judgment, and awarded the entire amount of the $500,000.00 policy for building damage to TLJ and Bremen. Be- cause of the unresponsiveness of its attorney of record, BSB’s shareholders were unaware of TLJ’s and Bremen’s motions for summary judgment and the district court’s order granting them until August 20, 2002, the day before that court’s order became final. BSB filed its Rule 60(b) motion and notice of appeal to the United States Court of Appeals for the Eighth Circuit within the time required by FRAP 4(a)(1)(A). The docket fees required by FRAP 3(e) were also paid in a timely fashion. At the time BSB filed its notice of appeal, BSB was still represented by counsel autho- rized to practice before the Eastern District and Eighth Circuit. However, due to his unavailability, Eilers and Tennant filed the notice of appeal on behalf of BSB on August 21, 2002 as pro se shareholders. Eilers and Tenant on behalf of BSB subsequently filed a corporate disclosure statement and a designa- tion of record in a timely fashion. The Eighth Circuit Clerk then provided a scheduling order. BSB met all of the filing deadlines with pleadings that conformed to — es all Federal Rules of Appellate Procedure and Eighth Circuit Local Rules regarding form and content. BSB then filed an Appellant’s Brief within the required time. Appellees TLJ and Bremen then filed a brief. Appellees did not contest the Eighth Circuit’s jurisdiction and responded to BSB’s Brief on its merits. This matter was then sent to screening for oral argument. BSB’s counsel of record was then granted leave to withdraw as BSB’s counsel. Within the time allowed to respond to Appellees’ Brief, Eilers and Tennant filed a Reply Brief on behalf of BSB as pro se shareholders. In correspondence received from the Eighth Circuit Clerk dated November 18, 2002 (A-10), the clerk ac- knowledged receipt of BSB’s Reply Brief, but indicated that a corporation cannot proceed pro se by its share- holders or officers, and that as a result BSB’s notice of appeal was subject to being stricken, and its appeal was subject to dismissal. The clerk apologized for not noting this earlier, but stated that the validity of a notice of appeal was a jurisdictional issue that the court could examine at any time. The clerk indicated that as a courtesy he would hold the appeal in abeyance for thirty days to permit Eilers and Tennant to retain legal counsel and validate their prior filings. Counsel entered an appearance for BSB, and within thirty days filed a Motion for Leave to File Pleadings and Briefs Previously Filed Pro Se and a Motion to Submit Corrected Notice of Appeal and Adopt Plead- ings Previously Filed Pro Se. With the motions, all pleadings and briefs previously filed pro se were re- filed bearing BSB’s new counsel’s signature. The Eighth Circuit denied BSB’s motions on February 12, 2002 and dismissed its appeal for lack of jurisdiction for failure to —_ vn file a valid notice of appeal. (A-95). Within the required time BSB filed a petition for panel rehearing. On March 12, 2003 the Eighth Circuit entered its Order denying BSB’s petition for rehearing. (A-110). Jeffrey Eilers and Janet Tennant assert that their civil liberties have been infringed upon in that they were unable to represent their closely held corporation because the Eighth Circuit Court of Appeals refused to recognize their notice of appeal, and dismissed BSB’s appeal without the opportunity for a hearing on the merits. Without reference to federal rules or statutes, the Eighth Circuit added an additional jurisdiction requirement for the hearing of an appeal as of right. In so doing the Eighth Circuit denied the right of Jeffrey Eilers and Janet Tennant to be heard. ARGUMENT REASONS FOR GRANTING THE WRIT I THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ERRED IN DIS- MISSING BIDDLE STREET BISTRO’S NO- TICE OF APPEAL FOR LACK OF JURISDIC- TION FOR FAILURE TO FILE A VALID NO- TICE OF APPEAL BECAUSE THE NOTICE OF APPEAL MET THE REQUIREMENTS OF FEDERAL RULE OF APPELLATE PROCE.- - DURE 3(A) IN THAT IT SPECIFIED THE PARTIES TAKING THE APPEAL, DESIG- NATED THE JUDGMENT BEING AP- PEALED, AND NAMED THE COURT TO WHICH THE APPEAL WAS TAKEN; FED- ERAL RULE OF APPELLATE PROCEDURE 3(A) CONTAINS NO JURISDICTIONAL MAN- — vee DATE THAT A NOTICE OF APPEAL CON- TAIN ANY SIGNATURE TO BE VALID. The Federal Rules of Appellate Procedure do not require that notices of appeal be signed for an appellate court to have jurisdiction. This Court has held that the requirement that a notice of appeal be signed is not jurisdictional. Federal Rule of Appellate Procedure 3(a) provides, in pertinent part, that “[aln appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4.” Rule 3(c) governs the content of notices of appeal: Notices “shall specify the party or parties taking the appeal; shall designate the judg- ment, order or part thereof appealed from; and shall name the court to which the appeal is taken.” Courts will liberally construe the requirements of Rule 3. Smith v. Barry, 502 U.S. 244, 247, 112S.Ct. 678, 680 (1992). This Court in Becker v. Montgomery, 532 U.S. 757, 121 S.Ct. 1801 (2001) also held that Federal Rule of Appellate Procedure 3(c)(2) does not dislodge the signa- ture requirement from its Civil Rule 11(a) moorings and make it an Appellate Rule 3 jurisdictional specifi- cation. Id. at 5382 U.S. 757, 759, 121 S.Ct. 1801, 1803 (2001). In Becker, this Court reasoned that the require- ment that a notice of appeal be signed when filed in the district court only comes from Federal Rule of Proce- dure 11(a) which provides that every paper filed with the district court shall be signed. Id. at 532 U.S. 757, 758, 121S.Ct.1801, 1805 (2001). Accordingly, this Court found that a failure to sign a notice of appeal as required by Civil Rule of Procedure 11(a) could not require a ea dismissal of an appeal because Rule 11(a) itself states that the omission of a signature may be corrected promptly after being called to the attention of the attorney or party. This Court also noted that this conclusion was in harmony with Federal Rule of Appel- late Procedure 3(c)(4) which provides: “An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.” Jd. at 532 U.S. 757, 759, 121 S.Ct. 1801, 1807-1808 (2001 citing Smith v. Barry (supra) at 502 U.S. 244, 245, 248- 249, 112 S.Ct. 678, 116 L.Ed.2d 678. ~ Without citing any authority in its Order, the Eighth Circuit has added is own jurisdictional requirement. Not only is this action contrary to prior decisions by this Court on this matter, it is also in violation of the spirit of the Federal Rules of Appellate Procedure. It is a hallmark of the Federal Rules of Appellate Procedure that an appeal not be dismissed for informality of form. BSB’s notice of appeal complied with the requirements of Federal Appellate Rule 3(c) to the letter. Its notice of appeal specified the party taking appeal, designated the order appealed, and identified the court to which the appeal was taken. In fact, it was sufficient to allow Appellees’ counsel to craft the appropriate responsive pleadings and a brief which argued the merits of BSB’s appeal. The Eighth’s Circuit’s dismissal also is in contradic- tion to the streng public policy argument that appeals should be heard and decided on their merits. At the time the Eighth Circuit dismissed BSB’s appeal, Appellees had already filed their brief that responded tothe merits of BSB’s appeal. No party would have been prejudiced, and justice encourages all disputes to be heard. — . a II THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ERRED IN DE- NYING BIDDLE STREET BISTRO’S MOTION FOR LEAVE TO FILE PLEADINGS AND BRIEFS PRIVIOUSLY FILED PRO SE AND MOTION TO SUBMIT CORRECTED NOTICE OF APPEAL BECAUSE BIDDLE STREET BISTRO PROMPTLY SOUGHT TO CORRECT THE OMISSION OF SIGNATURE OF COUN- SEL AFTER THE CLERK CALLED TO THE ATTENTION OF BIDDLE STREET BISTRO THE ALLEGED DEFECT IN THE NOTICE OF APPEAL IN THAT FEDERAL RULE OF CIVIL PROCEDURE 11(A) PROVIDES THAT AN UNSIGNED PAPER SHALL BE STRICKEN UNLESS OMISSION OF THE SIGNATURE IS CORRECTED AFTER BEING CALLED TO THE ATTENTION OF THE ATTORNEY.OR PARTY. The majority of Circuit Courts that have considered the effect of a notice of appeal filed on behalf of corpo- ration by a corporate officer who is not authorized to practice law have ruled that a pro se signature is not fatal to the corporation’s appeal. In Bigelow v. A&A Reality Limited, 170 F.3d 1164 (9* Cir. 1999), the Ninth Circuit noted that there is nothing in the Federal Rules of Appellate Procedure which requires dismissal of an appeal when a corporate officer who is not licensed to practice law signs a notice of appeal for a corporation. Id. at page 1165. “A notice of appeal is just that — a notice.” Id. The Ninth Circuit in Bigelow failed to see any compelling reason to refuse to recognize a corporation’s notice of appeal, so long as a lawyer promptly thereafter enters a formal appearance on an, aaa behalf of the corporation and undertakes the represen- tation. Id. The same conclusion was reached by the First Circuit in Instituto De Educacion Universal Corp. v. United States Department of Education, 209 F.3d 181 (1* Cir. 2000). The First Circuit recognized that a non-lawyer could not represent a corporation in ongoing proceed- ings; however, the court found there was a valid distinc- tion between ongoing legal representation and the “essentially ministerial action involved in the filing of a notice of appeal.” Jd. at page 22. The First Circuit then held that a corporate officer may sign and file a notice of appeal on behalf of a corporation, as long as the corporation then promptly retained counsel. Jd. Many other Circuits have held that where a corporation’s notice of appeal is signed by a corporate officer who is not an attorney, the court may allow the appeal to proceed as Jong as an attorney admitted to practice before the appellate court has filed an appear- ance.! The Eighth Circuit’s refusal to allow BSB’s notice of appeal and pleadings to be adopted by counsel was also inherently contradictory. When the Eighth Circuit first noticed that BSB’s notice of appeal was signed by non- attorney shareholders, its clerk held the appeal in abeyance to allow BSB to get licensed counsel. Within the time allowed by the clerk, BSB retained licensed counsel who attempted to cure the signature defect in BSB’s notice of appeal and adopt the previously filed 1 See e.g., AAA Venetian Blind Sales, Inc. v. Beaufieu of America, Inc., 124 F.3d 196 (6 Cir. 1997); Anunication v. West Capital Financial Services, 97 F.3d 1458 (9% Cir. 1996); Lewis v. Lenc- Smith Manufacuring Company, 784 F.2d 829 (7% Cir. 1986); K.M.A., Inc v. General Motors Acceptance Corp., 652 F.2d 398 (5" Cir. 1981). =" pleadings. No argument was presented to the court that this action would result in prejudice to any party because responsive pleadings and briefs had already been filed. Nevertheless, the Eighth Circuit denied BSB’s motion and dismissed its appeal without an opinion. It should also be noted that BSB is a closely held corporation. BSB’s notice of appeal was signed by its only two shareholders. Janet Y. Tennant’s and J effrey Eilers’ personal interests were directly effected by the district court’s actions. By signing the notice of appeal for BSB they were essentially not representing any interests other then their own. Due process requires that the court system be acces- sible to those who are aggrieved. The ridged distinction between a corporation and its owners should be disre- garded when that corporation is operated as a de facto sole proprietorship. To allow BSB’s sole shareholders to represent their closely held corporation would cause no more disruptions in the court system than courts cur- rently permit to allow individuals to appear pro se. In addition, Tennant and Eilers are not engaged in the unauthorized practice of law in attempting to represent their own «orporation because they are neither selling legal services nor holding themselves out as lawyers. — CONCLUSION For the foregoing reasons, the Petitioner respect- fully requests that the decision of the Eighth Circuit be reversed. Respectfully Submitted, Gary P. Paul BRINKER & DOYEN, LLP 1208S. Central Avenue, Suite 700 Clayton, Missouri 63105 (314) 863-6311 Attorney for Petitioner APPENDIX +: —_ . Appendix A IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURL EASTERN DIVISION FILED SEP, 20 2001 U.S. DISTRICT COURT EASTERN DISTRICT OF MO ST. LOUIS 4:01CVO1513SNL ALLSTATE INSURANCE COMPANY, Plaintiff, VS. BIDDLE STREET BISTRO, INC., TLJ COMPANY L.L.C. and, BREMEN BANK AND TRUST COMPANY, Defendants. PLAINTIFF ALLSTATE INSURANCE COMPANY’S COMPLAINT FOR INTER- PLEADER PURSUANT TO RULE 22 Comes now plaintiff, Allstate Insurance Company, and Pursuant to Rule 22, and 28 USC 1332, states as follows: —_ =e Plaintiff Allstate Insurance Company (“Allstate”) is an Illinois Corporation with its principle place of business in Ilinois, and for the purposes of juris- diction is a resident and citizen of the State of Illinois. Defendant Biddle Street Bistro, Inc., (“Biddle Street”) is a Missouri Corporation with its prin- ciple place of business located in St. Louis, Mis- souri, and for the purposes of jurisdiction is a resident and citizen of the State of Missouri. TLJ Company L.L.C. (“TLJ”) is a Missouri Corpo- ration with its principle place of business .in the State of Missouri and for the purposes of jurisdic- tion, is a resident and citizen of the State of Mis- souri Bremen B&nk and Trust Company (“Bremen”) is a Missouri Corporation with its principle place of business in the State of Missouri and for the pur- poses of jurisdiction, is a resident and citizen of the State of Missouri. Diversity of citizenship exists and that the amount in controversy is in excess of Seventy-Five Thou- sand Dollars ($75,000.00), exclusive of interest and costs, and jurisdiction is proper pursuant to 28 USC 1332. Allstate issued to Biddle Street a policy of insur- ance, effective November 10, 2000, through No- vember 10, 2001, policy number 50 343927, which insured Biddle Street for building damage up to a limit of $500,000.00 and insured Biddle Street for personal property damage up to a limit of $100,000.00. A copy of the policy is attached hereto and marked exhibit no. 1. =" ee 7. On November 14, 2000, Biddle Street claims a loss covered under the policy occurred and is making a claim against Allstate for proceeds under the policy of insurance. 8. Defendant TLJ, Inc. is identified as a loss payee under the policy of insurance issued by Allstate. 9. Defendant Bremen is identified as the mortgagee in the policy of insurance issued by Allstate. Plain- tiff Allstate has deposited into the registry of this court a sum equal to $600,000.00. 11. Biddle Street, TLJ and Bremen have each made claims for proceeds under the policy of insurance - issued by Allstate. 12. Biddle’ Street’s, TLJ’s and Bremen’s claims are in excess of the limits available under the policy of insurance exposing this plaintiff to double liabil- ity. 12. Allstate seeks the court’s determination of the allocation of the sums owed to defendants Biddle Street, TLJ and/or Bremen. WHEREFORE, Allstate prays this court to require defendant to interplead their claims in this court, find and adjudge that plaintiff is a disinterested party in regard to the dispute between defendants, bar all claims against this plaintiff by defendants, apportion the fund between defendants and award plaintiff its attorneys fees and costs related to the filing of this Interpleader action from the funds deposited herein as well as any further relief the court deems just and proper. — = Michael B. Maguire, #3728 David W. Laws, #81708 BROWN & JAMES, P.C. Attorneys for Plaintiff 705 Olive Street, 11" Floor St. Louis, Missouri 63101 314-421-3400 DWL/7239794 —_ S, “ — A-45 — The district court then granted TLJ’s and Bremen’s motions for summary judgment concerning the policy limits for the building damage. (App. 9-11). BSB was unable to communicate with their attorney of record, and was not aware of TLJ’s or Bremen’s motions and the district court’s order granting their motions until August 20, 2002. (App. 391-394). BSB then timely filed its notice of appeal. (App. 399-402). Appellant requests 15 minutes of oral argument. CORPORATE DISCLOSURE STATEMENT Biddle Street Bistro, Inc. has no parent companies or subsidiaries not wholly owned by the corporation. No publicly held company owns ten percent or more of the corporation’s stock. — A-46 — TABLE OF CONTENTS Item Page Summary Of CaG0 .vicinccnrescoontenmniecanmemnianeinmsass 1 Corporate Disclosure Statement...............0::00 2 Table of Content .2.200:sercsecssssssipsinnrstnnsasssvonioninains 3 Table of Authorities ...ccccscccsssssssessnnensnsonansanenencenne 4 Jurisdictional Statement....................csssescsseses 6 Statement of the Issues ..............-:sssssssssssessesseess 7 Statement of the Case ... a G.M. Battery & Boat Co. v L.K.N Corp., 747 S.W.2d 624, 627 (Mo banc 1988): In general, a person has an insurable interest in the subject matter insured where he has such a relation or concern in such subject matter that he will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or dam- - age from its destruction, termination, or injury by the happening of the event insured against. TLJ and Bremen base their claim to the building damage proceeds of BSB’s insurance policy on the fact that they were listed as named payees or mortgagees on the policy. (App. 43-45 and 409-411). The district court’s record clearly indicates that BSB, the named insured, did not intend to insure their interests. (App. 42, 141, 368 and 380). TLJ was the owner of the building and Bremen was mortgagee; however, a property insurance contract does not run with the property unless ex- pressly stipulated. Puritan Insurance Company v Yarber, 723 S.W.2d 98, 102 (Mo.App. 1987). An insur- ance policy is a personal contract between the insurer and the insured. Wilmurth v National Liberty Ins Co. of America et al., 206 S.W.2d 730, 733 (Mo.App. 1947). Accordingly, there must be proof that the terms of the policy allowed TLJ and Bremen to request to be named payees without the consent or knowledge of the named insured, and no such showing was made. — A-55 — ARGUMENT THE DISTRICT COURT ERRED IN GRANTING TLJ’S AND BREMEN’S MOTIONS FOR SUM. MARY JUDGMENT BECAUSETLJ AND BREMEN WERE NOT ENTITILED TO JUDGMENT AS A MATTER OF LAW BECAUSE THERE WERE GENUINE AND MATERIAL ISSUES OF FACT WHICH PRECLUDED SUMMARY JUDGMENT IN THAT: | A. THE RECORD BEFORE THE DISTRICT COURT CONTAINED SUFFICIENT FACTS TO DEMON. STRATE THAT BSB HAD AN INSURABLE IN. TEREST IN THE BUILDING ON 220 BIDDLE STREET, AND B. THE RECORD BEFORE THE DISTRICT COURT CONTAINED SUFFICIENT FACTS TO DEMON. STRATE THAT TLJ AND BREMEN HAD NO CLAIM TO THE ALLSTATE INSURANCE POLICY BECAUSE IT WAS NOT THE INTENT OF THE PARTIES TO THAT POLICY TO INSURE TLJ’S AND BREMEN’S INTEREST IN THE BUILDING ON 220 BIDDLE STREET. A. Standard of Review The Court reviews de novo a district court’s order granting summary judgment, using the same stan- dards as the district court. Get Away Club Ince. v. Coleman 969 F.2d 664, 666 (8th Cir. 1992). On appel- late review of a decision to grant summary judgment, the court applies the same standard applied by the district court. United Tel Co. v. Johnson Publishing Co., — A-56 — 855 F.2d 604, 607 (8th Cir. 1988). Summary judgment is to be granted only ifthere is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Id. In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1983). According to Federal Rule of Civil Procedure 56(e) BSB was not required to file a response to TLJ’s and Bremen’s motions for summary judgment to pre- serve their right to appeal. Rule 56(e) states if the opposing party fails to respond to a motion for summary judgment, the court shall only enter judgment against him “if appropriate.” B. Applicable Law This matter was before the district court by exercise of diversity jurisdiction. Accordingly, this Court should apply the substantive law of the State of Missouri. R.M. Taylor Inc. v General Motors Corp., 187 F.3d 809, 812 (8th Cir. 1999). C. Discussion i. Material facts exist which show Biddle Street Bistro’s insurable interest Material facts in the record below indicate that BSB had an insurable interest in the property damage portion of the Allstate policy. In TLJ’s and Bremen’s memorandum in support of their motions for summary judgment, they assert that summary judgment is ap- — A-57 — propriate because BSB had no insurable interests. (App. 41-47 and 411-413). They state that BSB admit- ted that it had no insurable interest, and that it never intended to make a claim on the building damage portion of the Allstate policy. (App. 43 and 409). They further assert that BSB had no insurable interest because it had no ownership interest in the destroyed property. (App. 45-46 and 411-413). A thorough review of the record reveals that BSB asserted a building damage claim. In its Answer to Allstate’s Complaint, BSB admits that it made a claim on the policy benefits for both personal property and damage to the building. (App. 13). Similarly, in their Answers, both TLJ and Bremen admit that all three co- defendants made claims on all applicable insurance policies. (App. 16-21). Further, in its answer to TLJ ’s requests for admissions, BSB specifically denied that it had no insurable interest in the destroyed building. (App. 386). It would be an error if the district court relied upon the fact that Biddle Street Bistro could point to no ownership interest in the destroyed property for the conclusion that it could have no insurable interest. Missouri law consistently refuses to link ownership with an insurable interest.? Missouri courts make ev- ery effort to find insurable interest, and to sustain coverage, when there is any substantial possibility that the insured will suffer loss from the destruction of the property. G.M. Battery & Boat Co. v LKN Corp., * See e.g., M.F.A. Mut. Ins Co. v Gulf Ins Co., 445 S.W.2d 829 (Mo. 1969) (a building contractor has an insurable interest in an uncompleted house he was required to complete); Graves v Stanton, 621 S.W.2d 524 (Mo.App. 1981) (a lessee of a trailer who had no option to purchase had an insurable interest in the liability insurance policy it took out). — A-58 — 747 S.W.2d 624, 627 (Mo banc 1988). The Missouri Supreme Court in that case went on to state that the controlling rule in Missouri is as follows: In general, a person has an insurable interest in the subject matter insured where he has such a relation or concern in such subject matter that he will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or dam- age from its destruction, termination, or injury by happening of the event insured against. Id. at 626 quoting Wrausmann v Kansas City Fire and Ma- rine Ins Co., 477 S.W.2d 741, 743 (Mo.App. 1972). The Missouri Supreme Court went on to hold that the fact that a lessee had not exercised its option to pur- chase at the time of the loss had no bearing on whether that lessee had an insurable interest. Id. at 627. There were many facts at the district court’s disposal that indicate Biddle Street Bistro had a pecuniary interest in the destroyed property. At the time of the loss and when it entered into the insurance contract, it was in the possession of the destroyed property. (App. 140 and 309). In the year preceding the loss, it was engaged in litigation to protect and define its interest. (App. 304-311). At the time of the loss, BSB was at- tempting to require specific performance of a contract which would allow it to buy back the destroyed property which it had previously owned so it could continue operation of its business. (App. 304-311). The record below also showed that BSB would have derived pecuniary benefit from the building’s preserva- tion. Since 1997 BSB ran a bistro on the premises and~ expended significant sums of money and labor in devel- oping good will in that location. (App. 304-311). BSB also made many material improvements to the de- | — A-59 — stroyed building from which it was deprived. (App. 304- 311). ii. Materia! facts exist which question TLJ and Bremen’s right to benefits under the Allstate policy There is no indication in the record below that any entity other than BSB ever paid to insure the building at 220 Biddle Street. It is also uncontested that BSB requested that TLJ.and Bremen be removed as payees, and that the policy was amended to reflect their wish. (App. 42, 141, 368 and 380). Upon notification of the policy change, neither TLJ nor Bremen requested BSB to replace them as loss payees or mortgagees. There is nothing in the record which indicates that either defen- dant attempted to protect their interests by taking out another property insurance policy. Instead, a represen- tative of TLJ went behind Biddle Street Bistro’s back and requested BSB’s insurance agent to put TLJ and Bremen back on BSB’s policy. (App. 141). An insurance policy is a personal contract between the insurer and insured. Wilmurth v National Liberty Ins Co. of America et al, 206 S.W.2d 730, 733 (Mo.App. 1947). A property insurance contract does not run with the property unless expressly stipulated. Puritan In- surance Co vu Yarber,, 723 S.W.2d 98, 102 (Mo.App. 1987). One who is not named as an insured cannot have the benefit of insurance, unless there is language in the policy to show that it intended to cover said interest. Id. TL’s and Bremen’s sole claim to the property damage proceeds of BSB’s insurance policy is that their request to be put back on BSB’s policy was granted. The district court erred by granting their claims to the policy pro- ceeds based upon this fact alone. It was never suggested that BSB had a contractual obligation to include them — ie on its policy as named insureds. TLJ and Bremen do not suggest that they attempted to pay for the policy. They simply assert that they requested BSB’s agent to put them on BSB’s policy, and the agent did so. They do not even suggest that BSB was aware that they were put back on its policy. There are no provisions in BSB’s insurance contract with Allstate which would autho- rize any entity other than the named insured to desig- nate named payees or mortgagees. The only indication of thé named insured’s intent in the district court’s record is that it specifically did not want TLJ’s and Bremen’s interests protected by its policy. (App. 368, 370 and 380). Without a showing that the Allstate policy permitted amendments to its terms by an entity other than BSB or Allstate, itis impossible to argue that an amendment to the policy made at the request of an entity other than Allstate or BSB reflects the intent of the policy, in addition, awarding TLJ and Bremen the benefits of a policy of insurance for which they did not pay would be an unjust enrichment. so CONCLUSION BSB respectfully requests this Court to reverse the district court’s order granting TLJ’s and Bermen’s motions for summary judgment and remand the case for further proceedings. s/ Janet Tennant 400 North 4th Street, #2801 St. Louis, Missouri 63102 314/780-0953 Fax: 314/241-2330 Pro Se Shareholder for Appellant s/ Jeff Eilers 5506 Grace Avenue St. Louis, Missouri 63116 314/580-6729 Pro Se Shareholder for Appellant — A-62 — ADDENDUM — A638 — UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION ALLSTATE INSURANCE COMPANY ; Plaintiff, VS. BIDDLE STREET BISTRO, INC., TLJ COMPANY L.L.C. and, BREMEN BANK AND TRUST COMPANY ‘ Defendants. Case No. 4:01CV1513 FILED JUL 22 2002 U.S. DISTRICT COURT EASTERN DISTRICT OF MO ORDER This matter is before the Court on Bremen Bank and Trust Company’s motion for summary judgment and TLJ Company, L.L.C.’s motion for summary judgment (#30) filed May 13, 2002. On June 26, 2002, the Court granted the parties’ motion to file an incomplete motion package because Biddle Street Bistro, Inc., had not responded to the motion. Allstate Insurance Company filed this interpleader action on September 20, 2001. It deposited into the Court’s registry $500,000 for building coverage and $100,000 for the contents coverage. Allstate was subse- — A-64 — quently dismissed from the action. On October 18, 2001, defendant TLJ and defendant Bremen Bank each filed a cross-claim against Biddle Street Bistro. Biddle Street never filed a cross-claim, nor did it file an answer to the cross-claims against it. Biddle Street Bistro was paid $100,000 from the Court’s registry which repre- sented the proceeds from the personal property compo- nent of the policy because neither TLJ, nor Bremen Bank claimed any interest in the contents coverage. TLJ and Bremen Bank have both filed motions for summary judgment. TLJ states it is entitled to $100,000 of the building damage proceeds, and Bremen Bank and Trust claims it is entitled to $400,000 of the building damage proceeds. Biddle Street did not file a response, and has not objected to these assertions. The Court has reviewed the summary judgment motions and finds they are with merit. Accordingly, IT IS HEREBY ORDERED that Bremen Bank and Trust Company’s motion for summary judgment and TLJ Company L.L.C’s motion for summary judgment (#30) are GRANTED. IT IS FURTHER ORDERED that judgment is en- tered in favor of Bremen Bank and Trust Company and TLJ Company, L.L.C., and against Biddle Street Bis- tro, Inc. IT IS FURTHER ORDERED that the Clerk of the Court pay $400,000 of the interpleader funds to Bremen. Bank and Trust Company. IT IS FURTHER ORDERED that the Clerk of the Court pay $100,000 of the interpleader funds to TLJ Company, L.L.C. — A-65 — IT IS FINALLY ORDERED that this cause of action is dismissed with prejudice. Dated this 22nd day of July, 2002. s/ SENIOR UNITED STATES DISTRICT JUDGE — A-66 — AN ORDER, JUDGMENT OR ENDORSEMENT WAS SCANNED, FAXED AND/OR MAILED TO THE FOL- LOWING INDIVIDUALS ON 07/22/02 by aluisett 4:01cv1513 Allstate Insurance vs Biddle Street Bistro 28:1332 Diversity-Insurance Contract Karl Dickhaus- 80043 Fax: 314-962-5083 Michael Hunter- 70351 Fax: 314-345-5055 SCANNED & FAXED BY: JULY 22 2002 — A-67 — UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION ~- ALLSTATE INSURANCE COMPANY Plaintiff VS. BIDDLE STREET BISTRO, IN C., TLJ COMPANY, L.L.C. and BREMEN BANK AND TRUST COMPANY Defendants. FILED APR 29 2002 U.S. DISTRICT COURT EASTERN DISTRICT OF MO Case No.4:01CV01513 SNL ORDER AND JUDGMENT Before the Court appears counsel for defendants and advise the Court that they have stipulated to the following facts: 1. This matter is before the Court on plaintiff Allstate Insurance Company’s petition for interpleader re- garding the proceeds under a policy of insurance numbered 50 343927. The policy at issue provided for coverage in the amount of $ 100,000 for personal property and $500,000 for real property loss. 2. Allstate Insurance Company has been released as a plaintiff under this Court’s order and judgment dated February 27, 2002. — A-68 — 3. Defendant Biddle Street Bistro, Inc. is the only party claiming any interest in the proceeds of the personal property component of the insurance, and there are no disputes regarding the same. 4. Biddle Street Bistro, Inc. has withdrawn any claim to interest on the $100,000 component represent- ing the personal property recovery under the policy. This disclaimer of interest does not apply to any interest accrued after payment by Allstate into the control of the Court. It is expressly acknowledged that any interest earned on the monies held by the Court will be paid exclusively to Biddle Street Bistro. Having been advised of the above, judgment is hereby entered finding that Biddle Street Bistro, Inc. is en- titled to disbursement of the interplead funds in the amount of $100,000, which amount represents the proceeds from the personal property component of the policy. The clerk of the court is hereby ordered and directed to disburse the same, payable to Biddle Street - Bistro, Inc. and Dickhaus and Associates, LC jointly. s/ - Karl W. Dickhaus, 2.D. #80043 Attorneys for Biddle Street Bistro, Inc. 1750 S. Brentwood, Ste. 300 St. Louis, Missouri 63144 Telephone (314) 962-9000 Facsimile (314) 962-5083 BIDDLE STREET BISTRO, INC. By: s/ Jeffery R: Eilers President — A-69 — SO ORDERED, s/ Judge Stephen N. Limbaugh DATED: 4/29/02 — AN ORDER, JUDGMENT OR ENDORSEMENT WAS SCANNED, FAXED AND/OR MAILED TO THE FOL- LOWING INDIVIDUALS ON 04/29/02 by aluisett 4:01cev1513 Allstate Insurance vs Biddle Street Bistro 28:1332 Diversity-Insurance Contract Kar] Dickhaus- 80043 Fax: 314-962-5083 Michael Hunter- 70351 Fax: 314-345-5055 SCANNED & FAXED BY APR 29 2002 C.D.D. — A-71 — CERTIFICATE OF COMPLIANCE We, Pro Se Shareholders for Appellant, certify that the number of words in the brief of Appellant is 3,320, as directed by F.R.A.P. 32(a)(7), which is based on a word count of the word processing system. The name and version of the word processing software used to. prepare the brief is Microsoft Word 2000. s/. Janet Tennant 400 North 4th Street, #2801 St. Louis, Missouri 63102 314/780-0953 Fax: 314/241-2330 Pro Se Shareholder for Appellant s/ Jeff Eilers 5506 Grace Avenue St. Louis, Missouri 63116 314/580-6729 Pro Se Shareholder for Appellant — A-72 — CERTIFICATE OF SERVICE Comes now and after being duly sworn and upon his/her oath states that on the day of , 2002, two copies of the brief of Appellant Biddle Street Bistro, Inc., were mailed to: Michael B. Hunter, Attorney for Appellees TLJ Com- pany, L.L.C. and Bremen Bank and Trust Company, 10 South Broadway, Suite 1600, St. Louis, Missouri 63102. s/ Janet Tennant 400 North 0' Street, #2801 St. Louis, Missouri 63102 314/780-0953 Fax: 314/241-2330 Pro Se Shareholder for Appellant s/ Jeff Eilers 5506 Grace Avenue St. Louis, Missouri 63116 314/580-6729 Pro Se Shareholder for Appellant Subscribed and sworntobeforemethis___ day of, 2002. s/ Notary Public My commission expires: — A-73 — UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ALLSTATE INSURANCE COMPANY, Interpleader Plaintiff, ¥. BIDDLE STREET BISTRO, INC. Defendant / Appellant, TLJ COMPANY, L.L.C. and BREMEN BANK AND TRUST COMPANY, Defendants / Appellees. Appeal No. 02-3141 MEMORANDUM OF FILING COMPUTER DISKETTE COMES NOW Appellant and files a computer dis- kette containing the full text of Appellant’s brief. The diskette has been scanned for viruses, and it is virus free. s/ Janet Tennant 400 North 4th Street, #2801 St. Louis, Missouri 63102 314/780-0953 Fax: 314/241-2330 Pro Se Shareholder for Appellant — s/___ Jeff Eilers 5506 Grace Avenue St. Louis, Missouri 63116 314/580-6729 Pro Se Shareholder for Appellant CERTIFICATE OF SERVICE A copy of the foregoing was mailed this___ day of October, 2002, to Michael B. Hunter, Attorney for Appellees TLJ Company, L.L.C. and Bremen Bank and Trust Company, 10 South Broadway, Suite 1600, St. Louis, Missouri 63102. s/ — A-75 — Appendix F Exhibit H United States Court of Appeals For the Eighth Circuit Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329 St. Louis, Missouri 63102 Michael E. Gans Clerk of Court VOICE 014) 244-4400 FAX (314) 244-2780 November 18, 2002 Ms. Janet Tennant 400 North 4th Street #2801 St. Louis, MO Mr. Jeff Eilers 5506 Grace Avenue St. Louis, MO 63116 Re: No. 02-3141 Biddle Street Bistro. Inc. v TLJ Company, L.L.C. et al, Dear Ms. Tennant and Mr. Eilers: This will acknowledge receipt of your “Reply Brief” in this matter. When we received the Reply Brief, we reviewed the file and noted your attorney, Mr. Dickhaus, was granted leave to withdraw on October 4, 2002. This — prompted a review of all of the filings in your appeal, and it appears that you have made all of the filings without benefit of counsel. While an individual may proceed pro se, a corpora- tion cannot proceed pro se by its shareholders or offic- ers. U.S. v Van Stelton, 988 F.2d 70 (8th Cir. 1993) and Carr Enters. Inc. v. United States, 698 F.2d 952 (8th Cr. 1985). As a result, your notice of appeal, as well as all of your subsequent pleadings, are subject to being stricken and your appeal is subject to being dismissed. While I apologize for the fact that this was not noted earlier, the validity of your notice of appeal is a jurisdic- tional issue which the court may examine at any time. As a courtesy to you, I will hold the appeal in abey- ance for 30 days to permit you to consult and retain legal counsel and for your attorney to determine whether there is any motion or other legal pleading which could be filed to validate your prior filings. At the end of this period of time, I will refer the case to the court for a determination as to whether the appeal must be dismissed or should be permitted to proceed. Sincerely, s/ Michael E. Gans Clerk of Court MEG/jpp co: Mr. Michael B. Hunter a ee a — *; a Appendix G UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ALLSTATE INSURANCE COMPANY, Interpleader Plaintiff, VS. BIDDLE STREET BISTRO, INC., Defendant / Appellant TLJ COMPANY, L.L.C. and BREMEN BANK AND TRUST COMPANY, Defendants /Appelleees. Appeal No. 02-3141 Appeal from the United States District Court Eastern District of Missouri Eastern Division MEMORANDUM IN SUPPORT OF APPELLANT BIDDLE STREET BISTRO’S MOTION TO SUBMIT CORRECTED NOTICE OF APPEAL AND ADOPT PLEADINGS PREVIOUSLY FILED PRO SE INTRODUCTION Jeffery Eilers and Janet Tennant are the sole share- holders of Biddle Street Bistro (hereafter BSB) which is a corporate entity. BSB was named asa defendantin an interpleader suit filed in the United States District — A-78 — Court, Eastern District, along with TLJ Company, Inc. (hereafter TLJ)and Bremen Bank and Trust Company, L.L.C. (hereafter Bremen). BSB was represented by counsel. At issue was the allocation of insurance pro- ceeds from an insurance policy Eilers and Tennant purchased to protect BSB’s interests in property lo- cated at 220 Biddle Street, St. Louis, Missouri. BSB was running a restaurant called “J’s on the Landing” at that location. While they were in posses- sion of the premises, the building and its contents were destroyed by fire. At that time, Bremen held a mortgage on the property, and TLJ held the deed on the property. The district court granted BSB’s motion for partial summary judgment and awarded it the entire policy limits for the personal property coverage. The district court then granted TLJ’s and Bremen’s motions for summary judgment concerning the policy limits for the damage to the building, and ordered that the insurance proceeds for building damage be paid to them. Eilers and Tennant were not aware of TLJ’s or Bremen’s motions for summary judgments or the district court’s order granting them until August 20, 2002. (App. 392-395). ; BSB wished to appeal the district court’s order grant- ing TLJ’s and Bremen’s motions for summary judg- ment. BSB filed a notice of appeal with the district court clerk within the time required by FRAP 4(a)( 1 )(A). (App. 399-402). They also paid the docket fees required by FRAP3(e) in a timely fashion. The notice of appeal was only signed by Eilers and Tennant as pro se shareholders of BSB. (App. 399-402). Eilers and Tennant on behalf of BSB subsequently filed a corporate disclosure statement and a designa- tion of record in a timely fashion. The Eighth Circuit — A-79 — Clerk then provided a scheduling order. BSB met all of the filing deadlines with pleadings that conformed to all Federal Rules of Appellate Procedure and Eighth Circuit Local Rules regarding form and content. BSB therr filed an Appellant’s Brief within the required time. That brief conformed with all Federal Rules of Appellate Procedure and Local Rules regarding form and content as well. Appellees then filed a brief. Appellees did not contest this Court’s jurisdiction and responded to Appellant’s Brief on its merits. This matter was then sent to screening for oral argument. Within the time allowed to respond to Appellees’ Brief, Eilers and Tennant filed a Reply Brief on behalf ofBSB. In correspondence re- ceived from the Eighth Circuit Clerk dated November 18, 2002, the Clerk acknowledged receipt of BSB’s Reply Brief, but indicated that a corporation cannot proceed pro se by its shareholders or officers, and that as a result BSB’s notice of appeal was subject to being stricken, and its appeal was subject to dismissal. The Clerk apologized for not noting this earlier, but stated that the validity of a notice of appeal was a jurisdic- tional issue that the Court could examine at any time. The Clerk indicated that as a courtesy he would hold the appeal in abeyance for 30 days to permit Eilers and ‘Tennant to retain legal counsel and validate their prior filings. Counsel has entered an appearance for BSB. ARGUMENT The Federal Rules of Appellate Procedure do not require that BSB’s pleadings be stricken or its appeal dismissed because its notice of appeal was not signed by an attorney. On the contrary, the principles guiding the Federal Rules of Appellate Procedure, as well decisions interpreting this issue from the United States Supreme Court and neighboring Circuits, clearly indicate that — A-80 — this Court has the authority to allow BSB to amend its notice of appeal so that it is signed by an attorney and decide BSB’s appeal on its merits. The United States Supreme Court has held that the requirement that a netice of appeal be signed is not jurisdictional. Federal Rule of Appellate Procedure 3(a) provides, in pertinent part, that “[aJn appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4.” Rule 3(c) governs the content of notices of appeal: Notices “shall specify the party or parties taking the appeal; shall designate the judg- ment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Courts will liberally construe the requirements of Rule 3. Smith v Barry 502 U.S. 244, 247, 112 S.Ct. 678, 680 (1992). The United States Supreme Court in Becker v Mont- gomery also held that Federal Rule of Appellate Proce- dure 3(c)(2) does not dislodge the signature require- ment from its Civil Rule 11(a) moorings and make it an Appellate Rule 3 jurisdictional specification. , at 532 U.s. 757, 759, 121 S.Ct.1801, 1803 (2001). In Thiem v Hertz Corporation, 732 F.2d 1559 (11th : Cir. 1984), the Eleventh Circuit was faced with a situation where a notice of appeal which met the re- | quirements of Rule 3 was unsigned by an attorney. The Eleventh Circuit noted that the only provisions for the content of the notice of appeal are found in Federal Appellate Rule 3(c) which states that the notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part — A-81 — thereof appealed from; and shall name the court to which the appeal is taken. j4. at 732 F.2d 1559, 1562. The Eleventh Circuit refused to dismiss the appeal simply because the notice was unsigned by an attorney reasoning that the Federal Rules of Appellate Proce- dure have no provisions for signing pleadings, as is found in Rule 11, Fed.R.Civ.P, and doubted Rule 11 applied to notices of appeal at all. 14 at 732 F.2d 1559,1563. The Court concluded: “[iJn any event, it appears clear that the rules do not require a decision that this Court is without jurisdiction to hear this appeal.” . The Fifth Circuit has also held that an unsigned notice of appeal, even if it does not meet the demands of Fed. R. Civ. P. 11, meets the jurisdictional requirements for appeal. McNeil v Blackburn, 802 F.2d 830, 832 5th Cir. 1986). BSB’s notice of appeal complied with the require- ments of Federal Appellate Rule 3(c) to the letter. Their notice of appeal specified the party taking appeal, designated the order appealed, and identified the court to which the appeal was taken. In fact, it was sufficient to allow Appellees’s counsel to craft the appropriate responsive pleadings and a Brief which argued the merits of its appeal. Imperfections in noticing an appeal should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to which appellate court. Becker, supra, 532 U.S. at 759, 121 S.Ct. at 1803, citing Smith v. Barry 502 U.S. 244, 245, 248-249,112 S.Ct. 678, 116 L.Ed.2d 678. It is contrary to the spirit of the Federal Rules of Appellate Procedure for decisions on the merits to be avoided on the basis of technical failing in the pleadings. The intent of the 1993 Rule 3 amendments, as explained in the 1993 advisory com- mittee notes, is to liberalized the pleading require- — A-82 — ments for a notice of appeal.” Ford v Elsbury 32 F.3d 931, 933-934 (5th Cir. 1994). The advisory committee note to the 1993 amendment in relevant part states: Finally, the rule makes it clear that dismissal of an appeal should not occur when it is otherwise clear from the notice that the party intended to appeal. If a court determines it is objectively clear that a party intended to appeal, there are neither admin- istrative concerns nor fairness concerns that should prevent the appeal from going forward. 14. 32 F.3d 931 at footnote #2.. The Eighth Circuit traditionally construes notices of appeal liberally, but the intent to appeal the judgment in question must be apparent and there must be no prejudice to the adverse party. Burgess v Suzuki Motor Co. Ltd, 71 F.3 d 304,307 (8th Cir 1995) citing Klandt v United States Dep’t of Interior, 990 F.2d 409, 411 (8th Cir. 1993) and Berdella v Delo 972 F.2d 204, 207 (8th Cir. 1992). Biddle Street Bistro is only asking to amend its notice of appeal by allowing it to be signed by an attorney licensed to practice before this Court. It is not asking for leave to amend the issues before this Court, the portions of the record below that it relied upon, or the arguments it presented in its Briefs. The under- signed counsel has reviewed all of the pleadings filed on behalfofBSB and wishes to adopt them without amend- ment. Counsel has submitted and filed with the Court new copies of these pleadings with counsel’s signature. The adverse parties have already responded to these pleadings. Accordingly, there can be no prejudice to any party by allowing Appellant to save its appeal and for the Court to render a decision on the merits. — A-83 — CONCLUSION The essence of Rule 3, both in its language and in the construction given to it by the courts, is liberality. Public policy encourages that appeals be heard on the merits. The undersigned counsel has reviewed the pleadings filed on behalf of BSB and the legal basis for. the arguments contained in BSB’s brief. The under- signed has found that the pleadings meet with this Court’s jurisdictional requirements, that BSB’s legal arguments are sound, and wishes to adopt them with- out amendment. Appellees have already filed their brief on the merits of Appellant’s arguments, so there could be no resulting prejudice. WHEREFORE Appellant Biddle Street Bistro re- spectfully requests this court to allow it to amend its notice of appeal by having it signed by the undersigned counsel, and to allow the undersigned counsel to adopt the pleadings filed pro se by Eilers and Tennant on Biddle Street Bistro’s behalf. Respectfully Submitted, BRINKER & DOYEN, L.L.P. _ By:s/ Gary P. Paul, #14579 120 South Central Avenue, Suite 700 Clayton, Missouri 63105 (314)-863-6311 (314)-863-8197 Attorney for Appellant Biddle Street Bistro, Inc. — A-84 — CERTIFICATE OF SERVICE A copy of the foregoing was mailed this day of December, 2002, to Michael B. Hunter, Attorney for Appellees TLJ Company, L.L.C. and Bremen Bank and Trust Company, 10 South Broadway, Suite 1600, St. Louis, Missouri 63102. s/ — A-85 — Appendix H UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ALLSTATE INSURANCE COMPANY, Plaintiff, Vv. BIDDLE STREET BISTRO, INC., Defendant / Appellant, TLJ COMPANY L.L.C. and, BREMEN BANK AND TRUST COMPANY, Defendants / Appellees. No. 02-3141 TLJ COMPANY L.L.C AND BREMEN BANK AND TRUST COMPANY’S MEMORANDUM IN OPPOSITION TO BIDDLE STREET BISTRO INC.’S MOTION FOR LEAVE Biddle Street Bistro, Inc. (hereinafter “BSB”) admits that it filed a pro se Notice of Appeal! on the last day permissible under FRAP Rule 4. BSB admits that all pleadings filed thereafter prior to the current Decem- ber 17, 2002 Motion for Leave were filed pro se. BSB argues that this is not a jurisdictional defect and that TLJ Company L.L.C. (hereinafter “TLJ”) and Bremen Bank and Trust Company (hereinafter Bremen”) are not prejudiced. An improper pro se Notice of Appeal is — A-86 — invalid and, as such, it was never properly or timely filed. BSB failed to properly invoke the jurisdiction of this court. BSB argues that Smith v. Barry holds that failure to sign a Notice of Appeal is not a jurisdictional defect. However, this is an inaccurate reading of Smith v. Barry. Rather, the issue in Smith v. Barry was whether a pro se informal brief filed within the time restraints of Rule 4 for Notices of Appeal served as the functional equivalent of a Notice of Appeal. Smith v. Barry, 502 US. 244, 248, 112S.Ct. 678, 682 (1992). The Court held that it could so serve. Jd at 245. Further, the appellant in Smith v. Barry was an individual who is entitled to represent himself pro se. Here, BSB must be repre- sented by an attorney in federal court. In the instant action Appellees concede that BSB attempted to file a document in the proper format. However, the Notice should be treated as having never been filed as it was not filed by an attorney representing BSB. One cannot say that FRAP Rule 3 has been followed when a corporation, specifically precluded from ap- pearing pro se before a federal court, files the Notice of Appeal. “Rule 3’s dictates are jurisdictional in nature, and their satisfaction is a prerequisite to appellate review. (citation omitted). Although courts should con- strue Rule 3 liberally when determining whether it has been complied with, noncompliance is fatal to an ap- peal.” Id at 248. BSB did not comply with Rule 3. Becker v. Montgomery is likewise inapplicable to the issue before this Court. There, a pro se appellant failed © to sign a Notice of Appeal although his typed name ~ appeared on the form. He attempted to fix the problem. The Court held that the signature requirement is based on FRCP Rule 11(a) which provides that one can correct — A-87 — the failure to sign a pleading and, that since the signa- ture requirement was not in FRAP Rule 3, it was not jurisdictional. Becker v. Montgomery, 532 U.S. 757, 758, 121 S.Ct. 1801, 1803 (2001). Becker merely failed to sign the notice. His right to proceed pro se on appeal was not at issue. Similarly, Theim v. Hertz Corporation fails to ad- dress the pertinent issue. In Theim a represented individual plaintiff filed a Notice of Appeal through his attorney that was proper but for the attorney’s failure to sign where his name was already typed on the notice. Theim v. Hertz Corporation, 732 F.2d 1559, 1562 (11th Cir. 1984). The issue was not the capacity of the party to file the Notice but whether the Notice was properly filed in that it was not signed. The court found it maintained jurisdiction over the appeal though the appellant failed to sign the otherwise proper Notice. Id at 1562-63. McNeil v. Blackburn fails to assist BSB. It, like the other cited cases, focuses on a technical defect in the Notice, not in the capacity of the party to file the Notice. However, it provides a general statement of jurisdic- tion that Appellees submit is of assistance in analyzing the current dispute. The court states, “[a]lthough nei- ther party has questioned the jurisdiction of this court to hear this appeal, this is a court of limited jurisdiction and this court must, on its own motion, determine if jurisdiction is present.” McNeil v. Blackburn, 802 F.2d 830, 831-32 (5th Cir. 1986)(citation omitted). Thus, this Court must determine whetherit hasjurisdiction though TLJ and Bremen did not raise the issue. BSB also cites Ford v. Elsbury, 32 F.3d 391 (5th Cir. 1994), stating that the purpose of the 1993 amendment to FRAP 3 was to liberalize the pleading requirements — A-88 — for a Notice of Appeal. It is not the content of BSB’s Notice that is the problem. Rather, it is that it was filed by an entity that is not allowed to proceed before this court. BSB concludes its argument by reference to prior decisions of this Court. Again, all of the cited cases deal with the sufficiency of the content of the Notice of Appeal, not whether it was properly filed to begin with. Further, this Court struck portions of the appeal for failure to comply with FRAP Rule 3 in Klandt and Berdella, two of the three cited cases. TLJ and Bremen agree that striking an appeal is appropriate when an appellant fails to comply with Rule 3. As to the issue raised by Hon. Michael Ganz in his November 18, 2002 letter to BSB, the law is clear that a corporation may only appear before a federal court through licensed counsel. Rowland v. California Men’s Colony, 506 U.S. 194, 202, 113 S.Ct. 716, 721 (1993). The Eighth Circuit has consistently refused to recog- nize pleadings of a corporation without counsel. In refusing to consider the appeal of one prose corporation this Court stated, “[wle conclude that {pro se corporate appellant] Mystery Boy is not a proper party to the appeal because it is not represented by counsel, and a corporation cannot appear pro se. Mystery Boy Incorpo- rated v. Postal Service, 27 F.3d, 572, 1994 WL 312818, **1 (8th Cir. (lowa)). See also First Horizon Corpora- tion v. Singleton et al., 129 F.3d 121, 1997 WL 636616, **1 (8th Cir.(Mo.)) (pro se corporation would not have been a proper party to the appeal had it joined the individual appellant’s Rule 60(b) motion); United States v. Lylalele, Inc., 221 F. 3d 1345, 2000 WL 688237, **1 (proper for district court to have stricken pleadings filed by pro se representative of corporation as it could — A-89 — not proceed without counsel); United States v. Van Stelton, 988 F.2d 70 (8th Cir. 1993) (pro se corporation found not a party to the appeal because not represented by counsel); Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996) (corporate party was noted to be technically in default when its counsel was allowed to withdraw as it could not proceed pro se). The appellant is required to file a Notice of Appeal under FRAP 3 to invoke the jurisdiction of this court. The form of Rule 3 as existed at the time BSB attempted to file its Notice of Appeal, includes various provisions stating, in essence, that technical defects on the face of the Notice will not result in dismissal. However, BSB’s Notice was defective not in form but was invalid in its entirety. BSB is prohibited from appearing before this court without counsel. Any action taken by BSB before this Court without counsel is invalid. The Notice of Appeal filed was filed by BSB without counsel on the last day permissible under FRAP Rule 4. The decisions of this Court cited by appellees herein demonstrate that the notice filed by BSB is invalid. Accordingly, BSB’s mo- tion for leave should be denied and the appeal dis- missed. Wherefore Appellees, TLJ Company L.L.C. and Bremen Bank and Trust Company, by and through undersigned counsel, pray the Court deny appellant’s Motion for Leave and for such other and further relief as this Court deems just and proper under the circum- stances. hi— WILLIAMS VENKER & SANDERS, L.L.C. By: s/ Michael B. Hunter,#70351 Equitable Building 10 South Broadway, Suite 1600 St. Louis, MO 63102 (314) 345-5000 (314) 345-5055 FAX ATTORNEYS FOR TLJ COMPANY, L.L.C. and BREMEN BANK AND TRUST COMPANY CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the above and foregoing was mailed, postage prepaid, this 26 day of December, 2002, to: Gary Paul Brinker .& Doyen LLP 120 S. Central St. Louis, MO 63105 Attorneys for Plaintiff- Janet Tennant 400 North 0 Street St. Louis, Missouri 63102 Jeff Eilers 5506 Grace Avenue St. Louis, Missouri 63116. s/ ALLSTATE INSURANCE COMPANY, Interpleader Plaintiff, V.S BIDDLE STREET BISTRO, INC., Defendant /Appellant TLJ COMPANY, L.L.C. and BREMEN BANK AND TRUST COMPANY, Defendants /Appelleees. Appeal No. 02-3141 Appeal from the United States District Court Eastern District of Missouri Eastern Division BIDDLE STREET BISTRO INC.’S REPLY TO TLJ AND BREMEN’S MEMORANDUM IN OPPOSITION TO BSB’S — A-91 — Appendix I UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT MOTION FOR LEAVE TLJ Company L.L.C. (hereinafter “TLJ) and Bremen Bank and Trust Company (hereinafter “Bremen”) ar- gue that Biddle Street Bistro Inc.’s (hereinafter “BSB”) appeal should be dismissed because its notice failed to comply with Federal Rule of Appellant Procedure 3. However, they fail to cite which Rule 3 requirement —e Appellant’s Notice of Appeal violates. In fact, TLJ and Bremen concede that BSB filed its Notice in the proper format, and that the content of BSB’s Notice was not a problem. (Appellees’ Memorandum in Opposition at pages 2 and 3). TLJ and Bremen’s also fail to cite any authority which suggests that BSB’s filing its notice of appeal pro se requires this Court to dismiss its appeal. The issue before the Court is not whether BSB can be represented pro se by its shareholders. At the time BSB filed its Notice of Appeal, BSB was represented by _ Attorney Karl Dickhaus who is an attorney authorized to practice before this Court. BSB filed its Notice of Appeal on August 21, 2002. (App. Page 399 and 400). Attorney Dickhaus was not granted leave to withdraw as counsel for BSB by this Court until October 4, 2002. The issue is whether BSB should be given the opportu- nity to have its appeal decided upon its merits by allowing it to amend its Notice of Appeal to contain the signature of counsel authorized to practice before this Court. On this issue, the United States Supreme Court and the authors of the Federal Rules of Appellate Procedure provide a clear and unambiguous answer. This Court has jurisdiction if BSB filed a timely Notice of Appeal that met the requirements of Rule 3. TLJ and Bremen do not contest that BSB’s Notice of Appeal followed Rule 3’s requirements to the letter. They argue that BSB’s Notice of Appeal was a nullity simply be- cause it was not signed by an attorney authorized to practice before this Court. The United States Supreme Court clearly disagrees with TLJ and Bremen’s conclu- sion. The Supreme Court has held that Rule 3 does not include a signature as a jurisdictional requirement. “[A] signature requirement is not among Rule 3(c)(1)’s specifications, for Civil Rule 11(a) alone calls for and controls that requirement and renders it nonjurisdictional.” Becker v Montgomery. 532 U.S. 757, LS — A-93 — 766, 121 S.Ct. 1801, 1807 (2001). In Becker the Su- preme Court then held that the appropriate remedy for an unsigned notice of appeal was to allow appellant to remedy the lapse by filing a duplicate notice of appeal with a signature. Id. ~ TLJ and Bremen cite several cases in which this Court held that corporations cannot be represented pro se by their shareholders or officers. However, none of the cases cited by TLJ and Bremen addressed the sufficiency of the appellants’ notices of appeals. A review of these cases reveals the true spirit of Rule 3, and public policy that encourages appeals to be decided on their merits. In each of cases cited by TLJ and Bremen, this Court decided the appeal based upon its merits. In Mystery Boy Incorporated v Postal Service 27 F.3d 572, 1994 WL 312818 (8th Cir.(lowa)), for ex- ample, this Court went on to consider the merits of appellants’ appeal even after it concluded that Mystery Boy was not a proper party, and that the pro se litigant failed to provide a transcript in accordance with Rule 10(b). In addition, TLJ and Bremen do not even suggest they would be prejudiced if the Court grants BSB’s motion. Prejudice would be impossible because TLJ and Bremen have already filed responsive pleadings and a brief which argue the merits of BSB’s appeal. Granting this Motion would be consistent with the Supreme Court’s decisions concerning the appropriate remedy, and allow justice to be served by allowing BSB’s appeal to be decided upon its merits. — A-94 — Respectfully Submitted, BRINKER & DOYEN, L.L.P. By: s/ Gary P. Paul, #14579 120 South Central Avenue, Suite 700 Clayton, Missouri 63105 (314)-863-6311 (314)-863-8197 Attorney for Appellant Biddle Street Bistro, Inc. CERTIFICATE OF SERVICE A copy of the foregoing was mailed this __day of December, 2002, to Michael B. Hunter, Attorney for Appellees TLJ Company, L.L.C. and Bremen Bank and Trust Company, 10 South Broadway, Suite 1600, St. Louis, Missouri 63102. — A-95 — Appendix J UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 02-3141 Biddle Street Bistro, Inc., Appellant, VS. TLJ Company, L.L.C.; Bremen Bank and Trust Company, Appellees. - Appeal from the United States District Court for the Eastern District of Missouri JUDGMENT Having considered apellarit’s motion for leave to submit a corrected notice of appeal and to adopt plead- ings previously filed pro se, we deny the motion and dismiss the appeal for lack of jurisdiction for failure to file a valid notice of appeal. (5361-010199) February 12, 2003 Order Entered at the Direction of the Court s/ Clerk, U.S. Court of Appeals, Eighth Circuit — A-96 — Appendix K UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Appeal No. 02-3141 ALLSTATE INSURANCE COMPANY, Interpleader Plaintiff V. _ BIDDLE STREET BISTRO, INC. Defendant / Appellant TLJ COMPANY, L.L.C. and BREMEN BANK AND TRUST COMPANY, Defendants / Appellees. Appeal from the United States District Court Eastern District of Missouri Eastern Division The Honorable Stephen N. Limbaugh, Senior United States District Judge PETITION FOR REHEARING BY PANEL BRINKER & DOYEN, L.L.P. Gary P. Paul, #14579 120 South Central Avenue, Suite 700 Clayton, Missouri 63105 (314)-863-6311 (314)-863-8197 Attorney for Appellant Biddle Street Bistro, Inc. ee a ee ene —~ SUMMARY OF THE CASE Allstate Insurance Company interplead the funds of a premises liability insurance policy. (App 1-3)! The named insured, owner of the property, and mortgagee were named as co-defendants. Biddle Street Bistro (hereafter BSB) Occupied the destroyed premises and was the named insured of the policy. TLJ Company, Inc. (hereafter TLJ) was the owner of the property, and Bremen’s Bank and Trust Company, L.L.C. was the mortgagee of the property. BSB, TLJ and Bremen each made a claim to the insurance proceeds. (App. 89 and 92). The district court granted BSB’s motion for partial summary judgment and awarded it the entire policy limits for the personal property coverage. (App. 5-7). The district court then granted TLJ’s and Bremen’s motions for summary judgment concerning the policy limits for the building damage. (App. 8-10). BSB was unable to communicate with its attorney of record, and was not aware of TLJ’s or Bremen’s motions and the district court’s order granting their motions until August 20, 2002, the day before that court’s order was to become final. (App. 59 and 61) BSB then filed its notice of appeal. (App. 66-69). BSB’s notice of appeal was filed pro se by its only two shareholders, Jeffrey Eilers and Janet Y. Tennant. (App. 399-402). Eilers and Tennant on behalf of BSB subsequently met all of the filing deadlines with plead- ings that conformed to all Federal Rules of Appellate Procedure and Eighth Circuit Local Rules regarding form and content. BSB then filed an Appellant’s Brief within the required time. 1 Appellant’s separate appendix will be referred to as “App.” — A-98 — Appellees then filed a brief. Appellees did not contest this Court’s jurisdiction and responded to Appellant’s Brief on its merits. Within the time allowed to respond to Appellees’ Brief, Eilers and Tennant filed a Reply Brief on behalf ofBSB. In correspondence received from the Eighth Circuit Clerk dated November 18, 2002, the Clerk acknowledged receipt of BSB’s Reply Brief, but indicated that a corporation could not proceed pro se by its shareholders or officers, and that as a result BSB’s notice of appeal was subject to being stricken, and its appeal was subject to dismissal. Clerk Gans then di- rected Eilers and Tennant to obtain counsel within 30 days. Ellers and Tennant immediately obtained counsel. The undersigned counsel within 30 days filed a Motion to Submit Corrected Notice of Appeal and Adopt Plead- ings Previously Filed Pro Se. On February 12, 2003 the Court denied BSB’s motion and dismissed its appeal for lack of jurisdiction for failure to file a valid notice of appeal. . CORPORATE DISCLOSURE STATEMENT Biddle Street Bistro, Inc. has no parent companies or subsidiaries not wholly owned by the corporation. No publicly held company owns ten percent or more of the corporation’s stock. — A-99 — TABLE OF CONTENTS Document Page SUMMARY OF THE CASE ..............ccccccesseseees 1 CORPORATE DISCLOSURE STATEMENT ... 3 py Pe ey Ee 4 TABLE OF AUTHORITIES ....................cccc0000 5 STATEMENT OF THE ISSUES. ............00..000000.. 6 STATEMENT OF THE CASE ..............0.0c0c0000 7 PAN SI 10 ee 14 CERTIFICATE OF COMPLIANCE ................... 16 CERTIFICATE OF SERVICE...............ceesceeees 17 — A-100 — TABLE OF AUTHORITIES Cases Page AAA Venetian Blind Sales Inc. v Beaufieu of America Inc. 124 F.3d 196 (6th Cir. 1997) . 13 Anunicaion v West Capital Financial Services, 97 F.3d 1458 (9th Cir. 1996) ..............cccsseoes 13 Becker v. Montgomery, 532 U.S. 757, 121 S.Ct. BI Ce victietntecicenennenvadnan 10,11 Bigelow v A & A Reality Limited 170 F.3d 1164 CE Gat He iiisiacdtadesvetenann 11,12 Instituto De Educacion Universal Corp. v United States Department of Education, 200 FSG 16 (lst Cir. 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