SOUTHERN DISTRICT OF FLORIDA

Honorable Erik P. Kimball

 

 

CHAMBERS LOCATION

UNITED STATES BANKRUPTCY COURT

Flagler Waterview Building

1515 North Flagler Drive, 8th Floor

West Palm Beach, FL 33401

COURTROOM LOCATION

UNITED STATES BANKRUPTCY COURT

Flagler Waterview Building

1515 North Flagler Drive, 8th Floor

Courtroom B

West Palm Beach, FL 33401

COURTROOM DEPUTY Dawn Leonard (561) 514-4143

SPECIAL INFORMATION AND PROCEDURES

 

INDIVIDUALS APPEARING WITHOUT COUNSEL (Pro Se)

  • If you are an individual appearing without a lawyer (pro se), you should review the Court’s Pro Se web page. Pro se parties must comply with the Bankruptcy Code, the Bankruptcy Rules, the Federal Rules of Evidence, and the Local Rules of this Court. Copies of the Local Rules are available on the Court’s website at http://www.flsb.uscourts.gov.
  • The Judge, the Judge’s law clerks, and members of the Clerk’s Office are not permitted to provide legal advice of any kind. DO NOT contact the Judge, the Judge’s law clerks, or any person in the Clerk’s Office other than the Courtroom Deputy for any purpose.  You may contact the Courtroom Deputy solely to address scheduling concerns or to arrange a telephonic appearance when permitted by the Court.
  • If you file a complaint, motion, or objection with the Court, it must clearly explain what you want the Judge to do and why. You must also send a copy of any such document and, if you are the movant a copy of any notice of hearing issued by the court, to all people and companies entitled to receive them under the relevant rules.

 

NO EX PARTE COMMUNICATIONS

  • Judge Kimball does not engage in any kind of communication with parties before the Court except on the record in the courtroom and through documents filed with the Clerk and orders entered by the court.  Bankruptcy Rule 9003 prohibits such ex parte communication with the Judge by any party in interest regarding any matter affecting a case. Failure to comply with this rule may result in sanctions.
  • DO NOT write letters to, e-mail, or call Judge Kimball, his law clerks, the Courtroom Deputy, or any member of the Clerk’s office. Except in unusual circumstances, each letter or e-mail addressed to Judge Kimball or his law clerks, or otherwise sent to the court, and identifying a particular case or proceeding, will be placed on the relevant docket and made part of the public record. Any such letter or e-mail may be set for hearing.

 

COURTROOM DECORUM

  • Whether or not the Judge is presiding, while at the courthouse (including during meetings of creditors under section 341 of the Bankruptcy Code) counsel and other persons should conduct themselves professionally, with appropriate respect for the Court, members of the Clerk’s Office, trustees, counsel to the United States Trustee, courthouse staff, opposing counsel, litigants, and witnesses. The Court’s Guidelines for Courtroom Decorum, which are posted on the Court’s website, will be strictly enforced.
  • Courtroom Decorum, which are posted on the Court’s website, will be strictly enforced.  Mobile phones may not be used in the courtroom at any time when court is in session except that counsel may use mobile phones to consult their personal calendars as necessary.  Court is in session at any time the proceedings are being recorded even if the Judge is not presiding. 
  • Personal conversations are to be conducted outside the courtroom when court is in session. Mobile phones and any other device that makes noise must be turned off, or placed in vibrate mode, while court is in session.

 

LOCAL RULES AND FORMS; ADMINISTRATIVE ORDERS

 

PAPERS FILED WITH THE COURT

  • In all written motions and applications, the opening paragraph should include a specific request for relief, cite appropriate sections of the Bankruptcy Code and Bankruptcy Rules, and provide a brief description of the basis for the requested relief. Written materials should be succinct and logically presented. Judge Kimball encourages counsel to abide by the “Rule of 5 and 10.” A routine matter, typically requiring approximately five (5) minutes for presentation to the Court, should be limited to five (5) pages and include no more than five (5) case cites. A more complex matter, typically requiring approximately ten (10) minutes for presentation to the Court, should be limited to ten (10) pages and have no more than ten (10) case cites. Repetitive inclusion of detailed case background information is not favored; it is acceptable to incorporate by reference the Case Management Summary or another document filed in the docket for this purpose. If Judge Kimball requires additional input from the parties, he will request that the parties file briefs or memoranda.
  • As required by Local Rule 9073-1(D), counsel for the movant must certify that he or she has contacted all adverse parties in an attempt to resolve the matter without a hearing. Failure to comply with the local rule may result in denial of the motion.

 

HEARINGS

Telephonic Appearances

  • UNDER NO CIRCUMSTANCES MAY ANY PARTICIPANT RECORD OR BROADCAST THE PROCEEDINGS CONDUCTED BY THE BANKRUPTCY COURT
  • Judge Kimball encourages telephonic appearances for routine, non-evidentiary matters. There is no geographic limitation regarding who may appear by telephone. The ability to appear by telephone is a privilege and not a right and such privilege may be withdrawn by the Court at any time without prior notice.
  • Telephonic appearances are allowed in all matters before the Court EXCEPT the following:
          1. Trials and evidentiary hearings – all counsel and all witnesses must appear in person;
          2. Chapter 11 confirmation hearings – the debtor (if an individual), a representative of the debtor (if not an individual), debtor’s counsel, and counsel for all objecting parties must appear in person;
          3. Chapter 13 hearings taking place during the court’s monthly chapter 13 calendar; and
          4. Any matter designated by the Court as one requiring a personal appearance.
  • Persons appearing by telephone may not use a speaker phone.  Persons on the telephone should state their name each time they speak so that the record properly reflects the identity of the speaker.  Persons on the telephone should speak loudly, clearly, and slowly.  Persons on the telephone should place the telephone on mute when they are not talking, to minimize background noise that is broadcast over the speaker system in the courtroom. Failure to do so may result in an incomplete or inaccurate record of the proceedings.
  • During telephonic hearings, persons present in the courtroom should move as close to the microphones as possible to ensure that all courtroom activity may be heard by those appearing by telephone.
  • Participation of persons appearing by telephone will be limited to a short statement or argument in support of, or in opposition to, the relief requested. Persons appearing by telephone may not engage in extended argument or participate in the introduction of evidence or examination of witnesses. If the Court determines it is appropriate to receive evidence at the scheduled hearing, the hearing will not be continued or rescheduled to accommodate those appearing by telephone.
  • If there is an equipment failure for any reason, the Judge may proceed with the hearing without participation of those appearing telephonically.
  • If an individual schedules a telephonic appearance and then fails to respond to the call of a matter on calendar, the court may treat the failure to respond as a failure to appear.
  • Persons appearing by telephone assume the risk of the prejudice that may result from not being present in person and therefore possibly being unable to advance points in favor of, or in opposition to, the relief requested.

 

Arranging Telephonic Appearances

  • All telephonic appearances before Judge Kimball will be through the services of an independent, fee-based conference call service. Persons wishing to appear by telephone must establish an account with the conference call service and follow its procedures. Judge Kimball recommends that persons intending to appear by telephone establish an account in advance of their first intended appearance.
  • Absent an emergency, telephone appearances may be arranged by calling  the conference call service not later than 3:00 p.m. prevailing Eastern Time on the court day prior to the hearing date.  You may obtain the telephone number for the conference call service from the Courtroom Deputy (561) 514-4143.
  • A waiver of the conference call service fees can be approved for pro se parties who have previously been granted in forma pauperis status, parties represented on a pro bono basis, and certain governmental entities, if requested prior to the hearing and approved by Judge Kimball.

 

Evidentiary Hearings

  • At the initial hearing on each contested matter, the Judge will consider whether an evidentiary or additional non-evidentiary hearing is required. Except for uncontested offers of proof necessary to support preliminary findings of fact, and except as provided in the following paragraph, matters on the motion calendar will be treated as preliminary, non-evidentiary hearings. Notwithstanding the foregoing, the Judge may consider evidence at any hearing in his discretion.
  • Whether or not noticed as evidentiary hearings, all hearings on motions for (a) authority to use or to prohibit use of cash collateral, (b) approval of post-petition financing, (c) payment of pre-petition wages, or (d) payment of pre-petition claims, are considered evidentiary hearings. In each case, the movant should be prepared to make an offer of proof consistent with the requirements of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and relevant law.

 

Chapter 11 Fast Track

  • Upon commencement of a chapter 11 case, the Court will enter an order setting a status conference for the purpose of reviewing the circumstances of the case, including any anticipated significant contested matters or adversary proceedings, and to consider whether it is appropriate to (1) set or change the deadline for filing proofs of claim or interest (other than claims of governmental units), (2) set a deadline for assumption and rejection of executory contracts and unexpired leases, (3) set a deadline for the filing of a disclosure statement and plan, (4) set a deadline for the solicitation of acceptances of a plan, (5) fix the scope and format of the notice to be provided regarding the hearing on approval of the disclosure statement, and (6) consider whether the hearing on approval of the disclosure statement should be combined with the hearing on confirmation of the plan. If a committee has been appointed under section 1102, the Court will also consider any issues relating to the requirements of section 1102(b)(3). If not previously determined, the Court may determine at the status conference whether the case is a single asset real estate case.
  • After the chapter 11 status conference, the Court typically enters a standard form Order Shortening Time for Filing Proofs of Claim, Establishing Plan and Disclosure Statement Filing Deadlines, and Addressing Related Matters. In most chapter 11 cases, this order (1) shortens the bar date for proofs of claim and interest to 90 days after the petition date (other than for governmental units), (2) sets a deadline for the filing of a plan and disclosure statement at 120 days after the petition date, and (3) at the debtor’s option, provides for the potential consolidation of the hearing on approval of the disclosure statement with the plan confirmation hearing.

 

Chapter 13 Hearings

  • Most uncontested Chapter 13 confirmation hearings and many uncontested Chapter 13 motions are handled by the Chapter 13 Trustee without the Judge present in the courtroom. These matters are presented to the Court by agreed or uncontested proposed orders. However, even if the Judge is not present, court is in session and the proceedings are recorded. All rules regarding courtroom decorum apply, including dress code and use of mobile phones. Please be advised that Judge Kimball often listens to the uncontested Chapter 13 docket from chambers.

 

Courtroom Electronics

  • Judge Kimball encourages the parties to use the electronic presentation facilities available in the courtroom. These include: (a) a lectern camera system that allows viewing of documentary evidence by the Court, other counsel, witnesses, and the gallery, without the need for multiple paper copies; (b) the ability to present documentary, video, and audio evidence via laptop plugged directly into the court’s audio-video system; (c) CD audio playback capability; and (d) DVD playback capability. The display system includes touch-screen technology that allows counsel and other parties to annotate documents on the display using a finger or stylus to “write” on the screen. Counsel wishing to use these systems may contact the Courtroom Deputy, at (561) 514-4143, in advance of the scheduled hearing to arrange a time to become familiar with the systems, subject to courtroom and staff availability.

 

Calendar: Obtaining, Continuing, and Canceling Hearing Dates

  • With the exception of matters that may be self-calendared (see Guidelines for Self-Calendaring), Judge Kimball’s calendar is maintained exclusively by the Courtroom Deputy. Do not call Judge Kimball’s law clerks about calendar matters.
  • Hearing dates for filed motions are assigned by the Court. The movant will receive a notice of hearing. It is the responsibility of the movant to serve the notice of hearing on other parties and file an appropriate certificate of service as required by Local Rule 2002-1(F). Failure to timely serve a notice of hearing and file a certificate of service thereof may result in denial of the relief requested and/or sanctions.
  • Except in unusual circumstances, contested matters are set for non-evidentiary hearing on a weekly motion calendar. At the first hearing, the Judge determines whether an evidentiary or additional non-evidentiary hearing is required.
  • Continuances of matters must be requested by filing a motion for continuance. If all relevant parties agree to the requested continuance, the motion should be designated as agreed and an agreed proposed order may be submitted. If all relevant parties do not agree, the motion for continuance may be set for hearing.
  • Matters settled prior to a hearing may be removed from the calendar by calling the Courtroom Deputy not later than noon at least one (1) business day prior to the hearing.

 

Emergency Matters

  • Emergency matters are those where direct, immediate, and substantial harm will occur to the interest of an entity, to the bankruptcy estate, or to the debtor’s ability to reorganize, if the parties are not able to obtain immediate relief. The movant must comply with Local Rule 9075-1. The movant should call the Courtroom Deputy to advise the Court that an emergency motion has been filed. Once filed, an emergency motion will be reviewed by the Judge to determine if it should be treated as an emergency. The Courtroom Deputy will set the hearing as directed by the Judge. Upon being informed of the date and time of hearing, the moving party must immediately provide notice to opposing counsel and other parties in interest by a method or methods aimed at providing actual notice of the scheduled hearing (this may include one or more of phone, fax, e-mail, and overnight mail), and the moving party shall file a certificate of service. Failure to provide immediate notice to opposing counsel and other parties in interest and file a certificate of service may result in denial of the relief requested and/or sanctions.

 

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