United States District Court, D. Connecticut
Michael P. Shea, U.S.D.J.
has filed a  Emergency Motion for an Injunctive Order in
this case, which is assigned to the Honorable Alvin W.
Thompson. In Judge Thompson's absence, the emergency
motion was referred to the undersigned.
requests that this Court issue an injunctive order
“prohibiting” the Honorable Julie A. Manning,
Chief Judge of the United States Bankruptcy Court for the
District of Connecticut, from “issuing the following
Orders today on January 12, 2018:”
An order dismissing the Appellant's bankruptcy petition
in case number 16-51133; and
An order granting Appellee Pennymac Holdings LLC relief from
an automatic stay previously granted to Appellant;
No. 5 at 1-2.) Appellant claims that “[t]he issuing of
these Orders as a result of a hearing held on January 10,
2018 would severely injur[e] the Appellant from the
protection afforded [him] as a result of the Bankruptcy Stay
and would also deny the Appellant” his constitutionally
protected due process rights and his rights under Rule 9014
of the Federal Rules of Bankruptcy Procedure (providing for
“reasonable notice and opportunity for hearing”
for “the party against whom relief is sought”).
(Id. . at 2.)
Court construes Appellant's “Emergency Motion for
an Injunctive Order” as a request for a preliminary
injunction because all adverse parties appear to have notice
of its filing. See Fed. R. Civ. P. 65(a). A party
seeking a preliminary injunction in the Second Circuit must
show: “(1) irreparable harm in the absence of the
injunction and (2) either (a) a likelihood of success on the
merits or (b) sufficiently serious questions going to the
merits to make them a fair ground for litigation and a
balance of hardships tipping decidedly in the movant's
favor.” Random House, Inc. v. Rosetta Books
LLC, 283 F.3d 490, 491 (2d Cir. 2002).
has not demonstrated that he is likely to succeed on the
merits or that there are sufficiently serious questions going
to the merits to make them a fair ground for litigation.
First, Judge Manning's rulings make clear that Appellant
was warned that dismissal of his bankruptcy petition was
possible, given his repeated failure to appear at
court-ordered hearings. (See No. 16-51133, ECF No.
312, ordering Appellant to appear and show cause why the case
should not be dismissed as a bad faith filing). Second, as
Judge Manning acknowledged in her January 5, 2018 Order (No.
16-51133, ECF No. 334 at 4), a discharge of bankruptcy would
have no effect on Appellant's in rem liability-i.e., an
order from this Court preventing the Bankruptcy Court from
dismissing the Appellant's bankruptcy petition would have
no effect on his ability to retain the property at issue.
See Johnson v. Home State Bank, 501 U.S. 78, 84
(1991) (“[A] bankruptcy discharge extinguishes only one
mode of enforcing a claim-namely, an action against the
debtor in personam-while leaving intact
another-namely, an action against the debtor in
rem.”); see also United States v. Alfano,
34 F.Supp.2d 827, 838 (E.D.N.Y. 1999) (“[D]ischarge
does not affect liability in rem and prepetition liens remain
enforceable after discharge.”).
same reason, as any decision on Appellant's bankruptcy
would not affect his right to retain his property, Appellant
has not demonstrated that he is likely to suffer irreparable
harm in the absence of preliminary relief.
Appellant also has not demonstrated that this Court has
jurisdiction to provide the relief he seeks. Though Judge
Manning's January 10, 2018 orders refer to
“Order[s] to enter . . . on or before January 12, 2018,
” those orders have yet to enter. (See No.
16-51133, January 10, 2018 minute entry). This Court does not
know whether those orders dismissing the bankruptcy petition
and granting relief from the automatic stay will be entered
or when, and what those orders will say. Federal courts do
not have jurisdiction over such unripe controversies. See
Marchi v. Bd. of Coop. Educ. Servs., 173 F.3d 469, 478
(2d Cir. 1999) (“For a case to be deemed justiciable
under Article III, it must be ripe.”).
when the Bankruptcy Court does enter final judgment against
Appellant, nothing in this order precludes Appellant from
appealing that judgment to this Court, as he has done in the
past. See 28 U.S.C. § 158 (providing for
jurisdiction in the district courts for appeals from final
judgments of the bankruptcy courts). Moreover, if Appellant
is concerned that he will be irreparably harmed in the
interim by a judgment once it is entered, he is also not
precluded from seeking a stay of such a judgment pending
appeal, a process he apparently is familiar with, having
sought such a stay in the past.
these reasons, the  Emergency Motion for an Injunctive
Order is DENIED WITHOUT PREJUDICE to seeking other