In Re: Jordana Marinkovic Bauman

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IN RE: JORDANA M. BAUMAN, Case No.: 24-CV-1564 JLS (BLM)

12 Debtor, ORDER: 13 14 (1) DENYING APPELLANT’S MOTION TO CONSOLIDATE 15 MEL MARIN, APPEALS, FILE LONG BRIEF, AND 16 Appellant, CLARFIY PARTIES AND ISSUES;

17 (2) REQUIRING APPELLANT TO 18 MICHAEL KOCH, PERFECT THE RECORD; AND Appellee. 19 (3) SETTING BRIEFING SCHEDULE 20 AND DIRECTING APPELLANT AND APPELLEE TO ADDRESS 21 STANDING IN THEIR BRIEFS 22 (ECF No. 33) 23

24 Presently before the Court is Appellant Mel Marin’s Motion to Consolidate Appeals 25 and For Leave to File Long Brief on Appeal and to Clarify Parties and Issues (“Mot.,” ECF 26 No. 33). Also before the Court are Appellant’s Supplement to Transmittal of Appeal along 27 with 88 attached documents, see ECF Nos. 35, 35-1 through 35-88, and subsequent Notice 28 of Unperfected Appeal, see ECF No. 36. 1 For the following reasons, the Court DENIES Appellant’s Motion (ECF No. 33) and 2 ORDERS Plaintiff to perfect the record on or before May 1, 2025. 3 BACKGROUND 4 On September 4, 2024, pro se Appellant Mel Marin filed this bankruptcy appeal.1 5 ECF No. 1. Appellant subsequently filed a Motion for Extension of Time to File Requests 6 to Proceed in Forma Pauperis (“IFP”), followed by his Motion for Leave to Proceed IFP. 7 ECF Nos. 7, 8. Then, on October 21, 2024, Appellant filed Emergency Motions to Stay 8 Pending Appeal and to Stay the State Court Action. ECF Nos. 11, 12. The case, originally 9 assigned to Judge James E. Simmons, was subsequently transferred to this Court. ECF 10 No. 14. On October 31, 2024, the Court granted Appellant’s Motion for Leave to Proceed 11 IFP but denied Appellant’s Emergency Motions.2 ECF No. 15. The Court then ordered 12 the Parties to perfect the record in accordance with Federal Rule of Bankruptcy Procedure 13 8009 on or before January 16, 2025. ECF No. 16 at 2. 14 On December 13, 2024, Appellant filed a Motion to Clarify Status After Bankruptcy 15 Filing, notifying the Court of his own bankruptcy filing under Chapter 13 and suggesting 16 that the case be stayed. ECF No. 17. The Court denied Appellant’s Motion as Appellant 17 had not adequately explained why such stay was justified. ECF No. 18 at 2. 18 On January 16, 2025, the Court received Appellant’s Designation of Record and 19 Points to Be Raised. ECF No. 19. Appellee Michael Koch then filed Supplements to 20 Transmittal of Appeal, including Appellee’s Designation of Record on Appeal and 21 Appendix, and Appellee’s Certificate that Transcript is Not Being Requested. ECF 22 Nos. 20, 21. However, on February 13, 2025, Appellant filed a Motion for Clarification 23 and Extension of Time to Perfect the Record, citing issues with a “bankruptcy window 24

25 26 1 Notably, Appellant represents he is the brother of the Debtor in the underlying action, Jordana Bauman, and indicates he is a party to this appeal as a creditor. See ECF Nos. 1, 12, 13. 27 2 The Court also denied Debtor Jordana Bauman’s Motion for Leave to Proceed IFP (ECF No. 9) as moot 28 1 clerk” and confusion with the Court’s prior Order. See generally ECF No. 22. On 2 February 20, 2025, the Court received a Notice of Unperfected Appeal, indicating that 3 Appellant had not taken action to perfect this appeal as provided by Federal Rule of 4 Bankruptcy Procedure 8009 because the record on appeal was not submitted by electronic 5 media, as required. ECF No. 23. Later that same day, Appellant filed a Motion to Stay the 6 Appeal to Allow the Lower Court to Correct the Record. ECF No. 24. 7 In its Order on February 21, 2025, the Court noted its concern with Appellant’s 8 repeated filings requesting clarification, extensions, or stays of this appeal. ECF 9 No. 25 at 4. Nonetheless, the Court granted Appellant’s Motion for an Extension of Time 10 to Perfect the Record and denied his Motion for Stay. Id. The Court ordered Appellant to 11 perfect the record on appeal in accordance with Federal Rule of Bankruptcy 12 Procedure 8009 on or before March 7, 2025, and advised no further extension would be 13 granted absent extraordinary circumstances. Id. at 4–5. 14 On March 7, 2025, Appellant filed a Supplement to Transmittal of Appeal. ECF 15 No. 26. However, on March 11, 2025, the Court received another Notice of Unperfected 16 Appeal, indicating that Appellant had not taken action to perfect this appeal as provided by 17 Federal Rule of Bankruptcy Procedure 8009. ECF No. 31. Specifically, the Notice advised 18 that the “electronic media contains multiple PDF files that collectively exceed 35 MB” and 19 directed Appellant to the requirements sent on September 3, 2024, entitled “Important Tips 20 Regarding the Attached Notice of Appeal.” Id. 21 In light of the deficiency, the Court again ordered Appellant to perfect his appeal, 22 granting him a new deadline of April 3, 2025. See ECF No. 32. The Court cautioned 23 Plaintiff for a second time that failure to timely perfect his appeal “may result in dismissal 24 of this appeal.” Id. at 3 (first citing Fed. R. Bankr. P. 8003(a)(2), 8020(b); then citing 25 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); and then citing In re Marsh, 26 19 F. App’x 727, 729 (9th Cir. 2001), which held that a three month delay in designating 27 the record on appeal was an “inexcusably flagrant violation of the court’s rules” and 28 warranted dismissal). The Court then vacated all other briefing deadlines on the appeal to 1 “be reset if and when Appellant perfects the record.” Id. 2 On April 1, 2025, Appellant filed a Motion to Consolidate Appeals and for Leave to 3 File Long Brief on Appeal and to Clarify Parties and Issues. See Mot. On April 4, 2025, 4 Michael Koch, Chapter 13 Trustee/Appellee filed an Opposition (“Opp’n,” ECF No. 34). 5 Subsequently, on April 7, 2025, Appellant filed a Supplement to Transmittal of 6 Appeal along with 88 attached documents. See ECF Nos. 35, 35-1 through 35-88. The 7 next day, the Court received a Notice of Unperfected Appeal, indicating that Appellant had 8 not taken action to perfect this appeal as provided by Federal Rule of Bankruptcy 9 Procedure 8009. See ECF No. 36 at 1. Specifically, the Notice stated that “[a]ll of the 10 documents indicated on the Designation of Record were not included in the electronic 11 media filed with the Bankruptcy Court for transmittal to the District Court (AM 2024-5-22 12 Case 24-1264 dkt 43 debtor plan b was omitted from the electronic media).” Id. 13 APPELLANT’S MOTION 14 The Court first addresses Appellant’s Motion to Consolidate Appeals and for Leave 15 to File Long Brief on Appeal and to Clarify Parties and Issues. In his Motion, Appellant 16 first seeks leave to file a longer brief “because this may be 6 appeals in one.” Mot. at 1. 17 He indicates there are six appeals “if this court consolidates 2010 to bring it here to 18 conserve judicial resources: (1) appeal from dismissal, (2) from lift stay, (3) from rehearing 19 of denial of dismissal, (4) denial of lift stay rehearing, (5) denial of leave to sue, 20 (6) recusal.” Id. at 5. Appellee responds that he was not properly served with this Motion 21 as required by Federal Rule of Civil Procedure 5 and has not agreed to service by email. 22 Opp’n at 2.3 23 Federal Rule of Civil Procedure 42 allows the Court to consolidate actions that 24 “involve a common question of law or fact[.]” Fed. R. Civ. P. 42(a). “District courts are 25 granted broad discretion in deciding whether to consolidate cases pending in the same 26

27 3 Pin citations to this docket entry refer to the CM/ECF page numbers stamped across the top margin of 28 1 district.” Twitchell v. Enovix Corp., No. 23-cv-00071-SI, 2023 WL 3170044, at *2 (N.D. 2 Cal. Apr. 28, 2023) (citing Invs. Rsch. Co. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 877 F.2d 3 777, 777 (9th Cir. 1989)). 4 Here, Appellant identifies only one other action, In re Jordana Marinkovic Bauman, 5 No. 24-cv-0210-AGS-DTF (S.D. Cal. filed Oct. 28, 2024), which was terminated January 6 14, 2025. As Appellant identifies no active actions for the Court to consolidate, the Court 7 DENIES Appellant’s request. Consequently, Appellant’s request for leave to file a longer 8 brief is likewise DENIED. 9 Appellant additionally requests the Court “clarify” various issues, which appears to 10 be a disguised attempt to argue his sister, Debtor, should be added as an appellant to this 11 appeal, and that the Court should “accept brother’s representation that he appealed from 12 both the June 3 dismissal lift stay and the reconsideration denial.” Mot. at 2–4. However, 13 Appellant, who is appearing pro se, does not represent his sister and may not make 14 arguments on her behalf or purporting to represent her interests. See Johns v. County of 15 San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (“While a non-attorney may appear pro se 16 on his own behalf, ‘[h]e has no authority to appear as an attorney for others than himself.’” 17 (quoting C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 697 (9th Cir. 1987))). 18 Second, to the extent Appellant argues he designated the “June 3 dismissal lift stay” in his 19 Notice of Appeal, the Court notes Appellant’s filed Notice of Appeal only identifies the 20 August 20, 2024 Order Denying Reconsideration. See generally ECF No. 1. However, as 21 briefing of this appeal has yet to commence, the Court has not had occasion to address— 22 and will not presently reach—whether it has jurisdiction over orders not designated in the 23 Notice of Appeal. See In re Morabito, No. 3:13-BK-51237-GWZ, 2018 WL 6006873 24 (B.A.P. 9th Cir. Oct. 30, 2018), aff'd sub nom. In re Consol. Nevada Corp., 778 F. 25 App’x 432 (9th Cir. 2019) (holding that the court did not lose jurisdiction over a 26 bankruptcy order just because it was not designated in the notice of appeal). 27 Accordingly, to the extent Appellant seeks “clarification” by arguing his sister 28 should be added as an appellant and that his Notice of Appeal before this Court explicitly 1 designates the “June 3 dismissal lift stay,” the Court DENIES such request. 2 The Court also takes this opportunity to remind Appellant that pro se litigants are 3 just as bound to follow procedural rules as lawyered parties. See Carter v. C.I.R., 4 784 F.2d 1006, 1008 (9th Cir. 1996) (“Although pro se, he is expected to abide by the rules 5 of the court in which he litigates.”). The Court, at its discretion and in light of Appellant’s 6 pro se status, has permitted Appellant to file multiple requests to the docket and considered 7 them, even though Appellant has not followed the procedures in the Civil Local Rules 8 prescribing the requirements for filing ex parte motions. See S.D. Cal. CivLR 83.3(g)(2) 9 (requiring an ex parte motion to be submitted with an affidavit or declaration detailing why 10 the notice of the motion could not have been made to the opposing party). Filing a motion 11 ex parte pursuant to Local Rule 83.3(g) allows a party filing a motion to seek relief from 12 default rule that “all hearing dates for any matters on which a ruling is required must be 13 obtained from the clerk of the judge to whom the case is assigned.” CivLR 7.1(b). 14 However, going forward, the Court advises Appellant that he must endeavor to 15 comply with the Local Rules to the best of his ability. This includes obtaining a motion 16 hearing date prior to filing noticed motions. Appellant may comply with the applicable 17 rules by post-marking his motion papers on the same day which he obtains a hearing date 18 from a law clerk in chambers. 19 Moreover, as raised by Appellee, Appellant must comply with Federal Rule of Civil 20 Procedure 5 which requires service of a written motion, except one that may be heard ex 21 parte, and provides for how such service may be made. See Fed. R. Civ. P. 5. 22 NOTICE OF UNPERFECTED APPEAL 23 Next, the Court addresses the third Notice it has received indicating Appellant has 24 again failed to perfect the record as required Federal Rule of Bankruptcy Procedure 8009. 25 See ECF No. 36 at 1. The Court is troubled by Appellant’s continued failure to comply 26 with the Federal Rules of Bankruptcy Procedure and this Court’s Order, but as it appears 27 Appellant is making efforts to perfect the appeal in his case, the Court will permit Appellant 28 an additional opportunity to perfect the record on this appeal. Appellant SHALL perfect 1 || the record on or before May 1, 2025. 2 The Court also finds it appropriate to SET the following briefing schedule: 3 1. On or before May 8, 2025, Appellant SHALL SERVE AND FILE his 4 || opening brief and any supporting evidence. Any cross-appeal shall be treated as an opening 5 motion for the purposes of this briefing schedule and filed by this date. 6 2. On May 22, 2025, Appellee Michael Koch SHALL SERVE AND FILE his 7 || opposition brief and any supporting evidence. 8 3. On or before May 29, 2025, Appellant MAY SERVE AND FILE his reply 9 || brief and any supporting evidence. 10 4. The Court DIRECTS both Appellant and Appellee to expressly address 11 whether Appellant Marin has standing to bring this appeal. The Court notes Appellant 12 |/indicates he is a “creditor” of his sister, the Debtor, in his Notice of Appeal. See ECF 13 ||No. 1. The Court requests the Appellant and Appellee tailor their brief in part to respond 14 || to whether Appellant Marin is a “person aggrieved” by the order he seeks to appeal. Jn re 15 || Fondiller, 707 F.2d 441, 443 (9th Cir. 1983) (holding that under the prudential standing 16 ||doctrine, only a “person aggrieved,” that is, someone who 1s “directly and adversely 17 || affected pecuniarily” by a bankruptcy court's order, has standing to appeal that order). 18 5. Upon completion of the briefing in accordance with the above schedule, 19 unless otherwise indicated by this Court, the Court shall decide this appeal on the papers 20 || without oral argument pursuant to Civil Local Rule 7.1(d)(1). 21 6. Except as otherwise stated herein, the Parties’ filings SHALL COMPLY 22 the Local Rules for the United States District Court for the Southern District of 23 California and the Electronic Case Filing and Administrative Policies and Procedures 24 || Manual of this District. 25 IT IS SO ORDERED. 26 ||Dated: April 16, 2025 Wh tt f Le 27 on. Janis L. Sammartino 28 United States District Judge