Tribune Media Co v.

• Court: Court of Appeals for the Third Circuit
• Decided: March 24, 2023
• Docket: 21-2000
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-2000 __________

In re: TRIBUNE MEDIA COMPANY, f/k/a Tribune Company, Reorganized Debtors

ROBERT HENKE, Appellant ____________________________________

On Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 1-20-cv-00383) District Judge: Honorable Richard G. Andrews ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) March 1, 2023 Before: HARDIMAN, PORTER, and FREEMAN, Circuit Judges

(Opinion filed: March 24, 2023) ___________

OPINION* ___________

PER CURIAM

Robert Henke, proceeding pro se, appeals from the District Court’s order

affirming the decision of the Bankruptcy Court, which granted the motion of Tribune

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Media Company (“Tribune”) to disallow Henke’s claims against Tribune pursuant to 11

U.S.C. § 502(b). We will affirm.

I.

In 2008, Tribune, which was the parent company of the publication the Baltimore

Sun (“the Sun”), filed for Chapter 11 bankruptcy. In 2009, Henke filed timely claims

against the Sun in the bankruptcy proceeding, stating that he had a defamation cause of

action against the Sun in relation to its 2007 publication of an article about him.1 Henke

alleged that the Sun was liable for $100 million in damages based on its

misrepresentations of him, his family, and his professional work. Tribune and the Sun

(collectively, “the debtors”) objected to Henke’s proof of claim and moved to disallow

his claims. After a hearing, the Bankruptcy Court sustained the objection and disallowed

Henke’s claims. Henke appealed to the District Court, which vacated the Bankruptcy

Court’s decision on the basis that Henke did not receive notice that he could present

evidence at the hearing. See C.A. No. 38 at JA11-20. On remand, the Bankruptcy Court

held an evidentiary hearing, where the debtors presented one witness—the writer of the

allegedly defamatory article—and Henke presented documentary evidence. Upon

considering the evidence, the Bankruptcy Court issued an opinion disallowing Henke’s

claims. See id. at JA21-55. Henke again appealed to the District Court, contending that

1 Henke filed a proof of claim and an amended proof of claim in the Bankruptcy Court. Because the Bankruptcy Court treated them as two claims rather than one amended claim, we will also refer to them in the plural. 2 the Bankruptcy Court was biased against him and that he was deprived of due process.

The District Court affirmed the Bankruptcy Court’s decision. This appeal followed.

II.

The Bankruptcy Court had jurisdiction under 28 U.S.C. §§ 157 and 1334, and the

District Court had appellate jurisdiction under 28 U.S.C. §§ 158 and 1334. We have

jurisdiction over this appeal pursuant to 28 U.S.C. § 158(d).2

“Because the district court sat as an appellate court reviewing an order of the

bankruptcy court, our review of its determinations is plenary.” In re Trans World

Airlines, Inc., 145 F.3d 124, 130 (3d Cir. 1998). Specifically, “we review the bankruptcy

court’s legal determinations de novo, its factual findings for clear error and its exercise of

discretion for abuse thereof.” Id. at 131. However, we will not review any issues that

Henke does not raise in his brief or any arguments that he did not present to the

Bankruptcy or District Courts. See In re Tribune Media Co., 902 F.3d 384, 397 (3d Cir.

2018); Barna v. Bd. of Sch. Dirs. of the Panther Valley Sch. Distr., 877 F.3d 136, 145 (3d

Cir. 2017) (citation omitted).

III.

On appeal in this Court, Henke first appears to contend that the Bankruptcy Court

was an improper forum that deprived him of a jury trial. That contention is without

merit. If Henke desired to preserve his claims against the Sun, he was required to file a

2 Henke’s timely notice of appeal was filed after the District Court granted his motion for an extension of time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5). 3 proof of claim in the Bankruptcy Court. See In re Dennis, 230 B.R. 244, 247 (Bankr.

D.N.J. 1999). Otherwise, any debt the Sun owed him may have been discharged in the

bankruptcy proceedings. See Judd v. Wolfe, 78 F.3d 110, 113-14 (3d Cir. 1996). Thus,

the Bankruptcy Court was an appropriate forum that had jurisdiction over Henke’s

claims, and he waived his right to a jury trial by filing his proof of claim in the

Bankruptcy Court. See Travellers Int’l AG v. Robinson, 982 F.2d 96, 100 (3d Cir.

1992).3

Henke also raises several due process claims. As a creditor participating in a

bankruptcy proceeding, Henke had a constitutional right to be heard on his claims. See

In re Tribune, 902 F.3d at 397. Contrary to his assertions, he was not deprived of that

right because the Bankruptcy Court did not provide him with a handbook or other

materials to aid him in pro se litigation. See Mala v. Crown Bay Marina, Inc., 704 F.3d

239, 246 (3d Cir. 2013).

We likewise disagree with Henke’s claims that he was denied due process because

the Bankruptcy Court was biased against him. As the District Court explained in its

opinion affirming the Bankruptcy Court, there is no evidence of bias in the Bankruptcy

Court’s opinion, and Henke’s allegation that the Bankruptcy Judge had “plagiarized” the

judge formerly assigned to the case is baseless. See C.A. No. 38 at JA5-7. Moreover,

3 Henke’s allegation that the debtors’ attorneys pressured him to file a proof of claim in the Bankruptcy Court is based on information outside of the record and, in any event, Henke did not attempt to withdraw his proof of claim on that basis. See Buncher Co. v. Official Comm. of Unsecured Creditors of GenFarm LP IV, 229 F.3d 245, 253 (3d Cir. 2000) (declining to review issue not raised before the Bankruptcy Court). 4 Henke’s claims of bias rely on the court’s legal conclusions and rulings, which alone are

insufficient to evidence bias. See Liteky v. United States, 510 U.S. 540, 555 (1994).

And, contrary to Henke’s assertions, the Bankruptcy Court’s opinion reflects that it

reviewed and considered his evidence.

Henke also appears to assert both that (1) the proceedings were unnecessarily

prolonged and thus depleted his financial resources, and (2) he was not afforded

sufficient time to prepare for such proceedings. To the extent that these contentions can

be reconciled, neither presents a due process violation. First, it does not appear that

Henke moved for appointment of counsel or made an objection based on indigency at any

point during the litigation, and he does not claim that he did. We therefore agree with the

District Court that Henke has forfeited any claim that he was denied due process by

virtue of his financial status. See C.A. No. 38 at JA7-8. And regarding the alleged delay,

we note that Henke sought and was granted multiple filing extensions in the Bankruptcy

Court, District Court, and this Court.

To the extent that Henke challenges the Bankruptcy Court’s denial of his request

for six months’ preparation for the evidentiary hearing, we review the court’s decision for

abuse of discretion. See In re Kiwi Int’l Air Lines, Inc., 344 F.3d 311, 323 (3d Cir.

2003); cf. SEC v. Infinity Grp. Co., 212 F.3d 180, 197 (3d Cir. 2000) (“Matters of docket

control and scheduling are within the sound discretion of the district court”). We discern

no such abuse. The matter was remanded for an evidentiary hearing in February 2019,

and the evidentiary hearing occurred on July 2, 2019. Henke timely produced discovery

and complied with the stipulated discovery order. The week prior to the hearing, the

5 Bankruptcy Court provided the parties an opportunity to request a continuance if they

needed further time to prepare; Henke did not make such a request. We accordingly

conclude that Henke received sufficient opportunity to be heard and cannot say that the

Bankruptcy Court failed to afford him due process. See In re Tribune, 902 F.3d at 397.

Henke also appears to contend that his right to due process was violated by the

admission of false testimony. However, it was the Bankruptcy Court’s duty to assess the

credibility of witness testimony, and we must give “due regard” to its opportunity to do

so first-hand. Kool, Mann, Coffee & Co. v. Coffey, 300 F.3d 340, 434 (3d Cir. 2002).

Because Henke has not shown that the Bankruptcy Court’s determinations were

“completely devoid of minimum evidentiary support displaying some hue of credibility

or [bore] no rational relationship to the supportive evidentiary data,” his argument is

without merit. Hoots v. Pennsylvania, 703 F.2d 722, 725 (3d Cir. 1983) (citation

omitted). To the extent that Henke otherwise challenges the merits of the Bankruptcy

Court’s rulings, we do not consider his contentions because he did not raise them in the

District Court. See In re Tribune, 902 F.3d at 397.

For the reasons stated, we affirm the District Court’s judgment affirming the

judgment of the Bankruptcy Court