In Re: Olegna Fuschi

• Court: Court of Appeals for the Second Circuit
• Decided: October 6, 2023
• Docket: 22-2610
• Status: Unpublished

Opinion

22-2610-bk In Re: Olegna Fuschi

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 6th day of October, two thousand twenty- 4 three. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 BARRINGTON D. PARKER, 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ 13 14 In Re: Olegna Fuschi, 15 16 Debtor. 17 _____________________________________ 18 19 Olegna Fuschi, 20 21 Debtor-Appellant, 22 1 v. 22-2610 2 3 The Bank of New York Mellon Trust 4 Company, N.A., FKA The Bank of New 5 York Trust Company, N.A., 6 7 Appellee. 8 9 _____________________________________ 10 11 12 FOR DEBTOR-APPELLANT: Olegna Fuschi, pro se, 13 Bronx, NY. 14 15 FOR APPELLEE: Morgan R. McCord, Eckert, 16 Seamans, Cherin & Mellott, 17 LLC, White Plains, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Jed S. Rakoff, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the matter is REMANDED for further

proceedings consistent with this order.

Appellant Olegna Fuschi, proceeding pro se, appeals from the dismissal of

her bankruptcy appeal. Through counsel, Fuschi filed for Chapter 11 relief in

bankruptcy court. After the bankruptcy court dismissed the petition, Fuschi 2 timely appealed to the district court.

Several months later, Fuschi’s attorney sent a short, three-sentence letter to

the district court, in which he identified himself as her attorney; stated that, upon

having “reviewed this matter,” he did “not believe there is a sufficient basis to

prosecute this appeal”; and requested that the appeal “be withdrawn.” Sept. 20,

2022 Letter, S.D.N.Y. No. 22-cv-332, ECF No. 4. The letter, which does not appear

to have been filed via ECF, was CCed to “all interested parties.” Id. The district

court so-ordered the letter the next day. Fuschi filed a notice of appeal less than

two weeks later.

On appeal to this Court, Fuschi, now pro se, represents that her attorney

sent the withdrawal letter without her knowledge or permission, and asks for the

restoration of her bankruptcy appeal. We assume the parties’ familiarity with the

remaining facts, the procedural history, and the issues on appeal. 1

1 Although the parties do not address appellate jurisdiction, we have an independent obligation to determine whether we can hear an appeal from a so-ordered dismissal. See Zaluski v. I.N.S., 37 F.3d 72, 73 (2d Cir. 1994) (per curiam). In the past, we have exercised jurisdiction over an appeal of a putative Fed. R. Civ. P. 41(a)(1) dismissal that the district court erroneously designated as with prejudice instead of without prejudice to the plaintiff’s detriment. See Youssef v. Tishman Constr. Corp., 744 F.3d 821, 822–23, 825 (2d Cir. 2014). While the order here was presumably entered under Fed. R. Bankr.

3 While a litigant is ordinarily bound by the actions or inactions of her lawyer,

we have recognized exceptions to this rule where attorneys have abandoned their

clients or exceeded their authority. See Gomez v. City of New York, 805 F.3d 419,

423–24 (2d Cir. 2015) (per curiam). Moreover, “unlike many other acts that an

attorney undertakes on a client’s behalf, the decision to settle or otherwise dismiss

claims rests with the client and is not automatically bestowed on retained

counsel”; and while we presume that counsel acts pursuant to authority, that

presumption is a rebuttable question of fact. Id. at 424 (internal quotation marks

and alterations omitted).

Here, however, the record does not permit us to answer the question posed

by Fuschi’s appeal. Unlike the plaintiff in Gomez, Fuschi did not bring her claim

that counsel exceeded his authority to the district court, but instead filed a notice

of appeal—one which, we note, cannot fairly be construed as anything other than

a notice of appeal, even with liberal construction. Cf. id. at 422.

P. 8023, not Fed. R. Civ. P. 41(a)(1), the bankruptcy rule permits dismissal only on motion or stipulation, not notice—a distinction requiring district court intervention, and which weighs in favor of exercising jurisdiction. Accordingly, we conclude that we have appellate jurisdiction.

4 However, under these unusual circumstances—where counsel’s letter was

not filed on the docket, the district court acted one day later, and the dismissal was

not on motion as required by Fed. R. Bankr. P. 8023(b)—we see no harm in

permitting, but not requiring, the district court to consider Fuschi’s arguments in

the first instance. The district court may exercise its discretion in deciding

whether to allow Fuschi to supplement the record to meet her “not insubstantial”

burden of showing that her attorney lacked authority to dismiss the appeal.

United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am.,

986 F.2d 15, 20 (2d Cir. 1993).

Accordingly, we REMAND the case pursuant to the procedures adopted in

United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994). The district court may, in

an exercise of its discretion, permit Fuschi to reopen the case to present evidence

and arguments to support her claim that the withdrawal was improper.

If the district court denies reopening or rehearing without further

proceedings, or if the district court expands the record but decides against

permitting the bankruptcy appeal to proceed to merits briefing, jurisdiction over

the appeal will be automatically restored to this Court, without the need for a new

5 notice of appeal, upon notification to the Clerk of Court within 30 days of the

district court’s decision. The panel will retain jurisdiction.

If instead the district court determines that Fuschi has met her burden, and

permits the bankruptcy appeal to proceed to merits briefing, the parties shall

inform the Clerk of the Court within 30 days of that decision, at which point this

appeal shall be dismissed. Should the parties wish to challenge the district

court’s ultimate adjudication of the bankruptcy appeal, a new notice of appeal will

be required.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court