Honorable Erik P. Kimball

IMPORTANT NOTICE REGARDING TELEPHONIC APPEARANCES

Effective September 1, 2008, except as noted below, all telephonic appearances before Judge Kimball will be through the services of CourtCall, an independent conference call company. Counsel wishing to appear by telephone must establish an account with CourtCall and follow its procedures. Judge Kimball recommends that counsel intending to appear by telephone establish a CourtCall account in advance of their first intended appearance. CourtCall may be contacted on the web at www.courtcall.com and by telephone at (866) 582-6878. Notwithstanding the foregoing, pro se debtors appearing at reaffirmation hearings are not required to use CourtCall and may arrange to be called directly by the Court. Please see below for detailed instructions.

Individual Debtors Appearing Without Counsel (Pro Se Debtors)

If you are an individual debtor appearing without a lawyer, you are a pro se debtor. You should review the Court's pro se web page at http://www.flsb.uscourts.gov/Pro_Se/Pro_se.html. Pro se debtors must comply with the Local Rules as well as the Bankruptcy Code and Bankruptcy Rules. Copies of the Local Rules are available on the Court’s website at www.flsb.uscourts.gov or from the Clerk’s Office.

Please note that the Clerk’s Office, the Judge, and the Judge’s staff are not permitted to give legal advice.  

If you file a motion with the Court, it must clearly explain what you want the Judge to do and why. You must also send a copy of any motion and a copy of any notice of hearing to all people and companies entitled to receive them under the relevant rules.

If you have signed a reaffirmation agreement and the Court sets a hearing on your reaffirmation agreement, you may appear at that hearing by telephone. Please see below under “Pro Se Debtors’ Telephonic Appearances at Reaffirmation Hearings.”

Courtroom Decorum

Whether or not the Judge is presiding, while at the courthouse (including during 341 meetings) counsel should conduct themselves professionally, with appropriate respect for the Court, members of the Clerk’s Office, the Assistant 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.

Cell phones may not be used in the courtroom at any time when court is in session. Court is in session at any time the court reporter is recording the proceedings even if the Judge is not presiding.

Personal conversations are to be conducted outside the courtroom when court is in session. Cell phones, beepers, 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

The Local Rules and Administrative Orders will be strictly enforced. The Local Rules, Administrative Orders, Local Forms, and form orders are posted on the Court's website at www.flsb.uscourts.gov. Judge Kimball expects that all counsel and pro se parties appearing before the Court will be familiar with the Local Rules as updated and amended from time to time.

Papers Filed with the Court

In all written motions and applications, the opening paragraph should include a specific request for relief citing appropriate sections of the Bankruptcy Code and Rules and 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 before filing a motion requiring a hearing. Failure to comply with the local rule may result in denial of the motion.

Hearings

Telephonic Appearances

Judge Kimball encourages telephonic appearances for routine, non-evidentiary matters. There is no geographic limitation regarding who may appear by telephone. Please note, however, that the ability to appear by telephone is a privilege and not a right and that such privilege may be withdrawn by the Court at any time.

Under no circumstances may any participant record or broadcast the proceedings conducted by the Bankruptcy Court.

Telephonic appearances are allowed in all matters before the Court except the following:

            a.         Trials and evidentiary hearings – all counsel and all witnesses must appear in person;

 

            b.         Chapter 11 status conferences – a representative of the debtor and debtor’s counsel must appear in person, other parties in interest may appear by telephone;

            c.         Chapter 11 confirmation hearings – a representative of the debtor, debtor’s counsel, and all objecting parties must appear in person;

            d.         Chapter 13 hearings of all kinds; and 

 

            e.         Any matter designated by the Court as one requiring a personal appearance.

Counsel appearing by telephone may not use a speaker phone - a handset must be used. Counsel should state his or her name each time he or she is heard so the court reporter can identify who is speaking. Counsel should speak loudly, clearly, and slowly. Also, counsel should cover the telephone handset, or place the telephone on mute, when he or she is not talking, to minimize background noise that is broadcast over the speaker system in the courtroom. Failure to do so may result in the inability of the court reporter to fully and accurately transcribe the statements of counsel.

During telephonic hearings, counsel 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 counsel appearing by telephone will be limited to a short statement or argument in support of, or in opposition to, the relief requested. Counsel 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 counsel appearing by telephone.

If there is an equipment failure for any reason, the Judge will proceed with the hearing without participation of counsel 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 pass the matter or may treat the failure to respond as a failure to appear.

Counsel assumes the risk of the prejudice that may result from not being present in person and therefore possibly being unable to advance the party's points in favor of, or in opposition to, the relief requested.

Arranging Telephonic Appearances Prior to September 1, 2008

Appearances by phone must be arranged with Cindy Klopp, Courtroom Deputy, (561) 514-4143, at least 48 hours in advance of the hearing. There is no assurance that requests will be granted. The denial of a last-minute request will not be an appropriate basis for requesting a continuance of the hearing.

Counsel should provide the Courtroom Deputy with a direct telephone line (or a direct line to his or her secretary or paralegal), rather than a switchboard number. The Court can accommodate only one party’s telephonic appearance at a particular hearing. If more than one party wishes to appear telephonically, counsel must arrange among themselves for a “call-in conference call” and must supply the Court with the telephone number and access code(s) at least 48 hours before the hearing. If the “call-in conference call” designates a moderator, the Court must be the moderator and the Courtroom Deputy must be provided with the moderator’s access code.

Arranging Telephonic Appearances On and After September 1, 2008

Except for pro se debtors appearing at reaffirmation hearings (see below), on and after September 1, 2008 all telephonic appearances before Judge Kimball will be through the services of CourtCall, an independent conference call company. Counsel wishing to appear by telephone must establish an account with CourtCall and follow its procedures. Judge Kimball recommends that counsel intending to appear by telephone establish a CourtCall account in advance of their first intended appearance. CourtCall may be contacted on the web at www.courtcall.com and by telephone at (888) 882-6878.

Absent an emergency, telephone appearances may be arranged by calling Court Call at (888) 882-6878 not later than 3:00 p.m. prevailing Eastern Time on the court day prior to the hearing date. Any request for a telephonic appearance made after the 3:00 p.m. deadline must be Court approved by contacting Judge Kimball’s Courtroom Deputy, Cindy Klopp, at (561) 514-4143.

CourtCall will provide counsel with written confirmation of a scheduled telephonic appearance, and give counsel a number to call to make the telephonic appearance. It is counsel’s responsibility to dial into the call not later than 10 minutes prior to the scheduled hearing. CourtCall does not place a call to counsel. The initial charge per participant for a Court Call appearance is $25.00 for the first 45 minutes, and then $6.50 for each additional 15 minute increment. If you do not timely call and connect with the CourtCall operator, you will be billed for the call and the hearing may proceed in your absence. Please check with CourtCall for more detailed fee rules.

Telephonic appearances are connected directly with the sound system in the courtroom. To ensure the quality of the record, the use of mobile telephones, speaker phones, public telephone booths, or phones in other public places is prohibited except in the most extreme emergencies.

Once placed into the hearing by the CourtCall operator, you will be able to hear all activity before the Court just as if you were in the courtroom. As with appearances made in person, you will need to wait for your matter to be called. The Judge will call the case, request appearances, and direct the manner in which the hearing proceeds. The court’s teleconferencing system allows more than one speaker to be heard, so the Judge can interrupt a speaker to ask a question or redirect the discussion. When the Judge informs the participants that the hearing is completed, you may disconnect and the next case will be called.

A waiver of the CourtCall fees can be approved for pro se parties who have previously been granted in forma pauperis status, parties represented by Legal Services on a pro bono basis, and certain governmental entities, if requested prior to the hearing and approved by Judge Kimball. If such request is approved, the Court will notify CourtCall prior to the hearing of such waiver of fees.

Pro Se Debtors' Telephonic Appearances at Reaffirmation Hearings

In an effort to avoid the need for pro se debtors to be absent from work during regular working hours, pro se debtors may appear at reaffirmation hearings by telephone. Appearances by telephone must be arranged with Cindy Klopp, Courtroom Deputy, (561) 514-4143, at least 48 hours in advance of the hearing. The denial of a last-minute request will not be an appropriate basis for requesting a continuance of the hearing.

Pro se debtors should provide the Courtroom Deputy with a direct telephone line rather than a switchboard number unless absolutely necessary. Cell phone appearances are discouraged except where the pro se debtor is unable to provide another number where he or she will directly answer the telephone. Debtors must be available beginning when the hearing is scheduled until they are called by the Court. Pro se debtors are reminded that a telephonic appearance is an appearance before the Court and that they should conduct themselves as if they were physically present in the courtroom. 

Time of Hearings

Hearings will start at the scheduled time. Counsel, clients, and witnesses are required to appear in court at the scheduled time of a hearing. Tardiness will be excused only in the event of an unanticipated emergency or occurrence. Traffic does not qualify as an unanticipated event other than unusual traffic caused by accident or other unanticipated traffic event. If you are late and your case is called before you arrive, it is likely the motion will either be denied for failure to prosecute or granted without opposition. If you have good grounds for your failure to appear at the scheduled time, you may file a motion for reconsideration.

Evidentiary Hearings

With the exception of offers of proof necessary to support preliminary findings of fact, matters on the motion calendar that may require presentation of evidence will be treated as preliminary hearings. If an evidentiary hearing will be required, counsel shall advise the Courtroom Deputy as soon after the filing of the matter as possible. Notwithstanding the foregoing, the Judge may consider evidence at a non-evidentiary hearing in his discretion.  

Chapter 11 Status Conferences

The Court will schedule a Section 105 status conference within thirty (30) days after the filing of a Chapter 11 petition. The debtor and all parties in interest are invited to attend. At the status conference the Judge will consider scheduling of the confirmation process.

Chapter 13 Hearings

Most uncontested Chapter 13 confirmation hearings and many uncontested Chapter 13 motions will be handled by the Chapter 13 Trustee without the Judge’s actual presence in the courtroom. However, even if the Judge is not present court is in session and the proceedings are being recorded by the court reporter. All rules regarding courtroom decorum, including dress code and use of cell phones, apply. Please be advised that Judge Kimball often listens to the Chapter 13 docket from chambers.

Judge Kimball generally will not consider exceptions to the requirement of a wage deduction order for plan confirmation.

Chapter 13 evidentiary matters will be set on the Chapter 13 evidentiary calendar which generally will be at 1:30 p.m. on the second Thursday following the relevant Chapter 13 docket. Please check the Court’s calendar to confirm.

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; and (c) DVD and VHS video 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 should contact Cindy Klopp, Courtroom Deputy, at (561) 514-4143 as far in advance of the scheduled hearing as possible. The court will make these systems available for testing by counsel prior to a scheduled hearing subject to courtroom and staff availability.

Calendar: Obtaining, Continuing, and Canceling Hearing Dates

Judge Kimball strives to provide timely hearing dates for all matters. The cooperation of counsel is essential in this regard. The Court’s heavy docket requires that parties confer with each other as to the availability of the parties before resetting, or specially setting, hearings.

With the exception of certain Chapter 13 matters that may be self-calendared, 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).

Evidentiary hearings, and motions that will require in excess of ten (10) minutes for presentation by all parties, must be specially set and will usually not be heard during the regular motion calendar. Counsel requesting the hearing shall inform the Courtroom Deputy that the matter requires a specially set hearing. It is the responsibility of the party setting the hearing to determine the availability of the other parties. The Courtroom Deputy will not assist in clearing dates for parties who do not confer with each other. Failure of counsel to confer with one another before setting hearings may result in the hearing not going forward. For specially set matters, Judge Kimball may enter an order setting forth the Court’s procedural requirements. Please read this order carefully.

Continuances for hearings on the motion calendar must be requested by filing a motion for continuance. If the parties agree to the continuance, the motion should be designated as agreed and an agreed proposed order may be submitted. If the parties do not agree, the motion for continuance will be set for hearing. Continuances for pretrial conferences or specially set evidentiary matters generally will not be granted ex parte without a hearing, even if agreed.

Emergency matters are those where direct, immediate, and substantial harm will occur to the interest of an entity in property, to the bankruptcy estate, or to the debtor’s ability to reorganize if the parties are not able to obtain an immediate resolution of any dispute. The movant must comply with Local Rule 9075-1, except that Judge Kimball will not require the delivery of a courtesy copy of the motion to chambers. The movant should call the Courtroom Deputy or the Judge’s law clerks to advise the Court that an emergency motion may be or has been filed. Once filed, an emergency motion will be reviewed by Judge Kimball 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, and e-mail), and the moving party shall file a certificate of service. Failure to provide immediate notice to opposing counsel and other parties in interest may result in the hearing not going forward.

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.

Papers Filed Within Two (2) Business Days Prior to Hearing

Counsel seeking to file papers within forty-eight (48) hours of a hearing must comply with Local Rule 5005-1(F). It is counsel's responsibility to confirm the Judge has received emergency or urgent documents. Counsel may call the Courtroom Deputy to confirm that late-filed papers have been received by the Judge.  

Motions for Summary Judgment

The Court generally will not set motions for summary judgment for hearing. The Court will enter an order setting a briefing schedule. If you do not receive an order setting a briefing schedule within ten (10) days after filing a motion for summary judgment, please contact Judge Kimball’s law clerks.

Proposed Orders

All parties are expected to be familiar with, and prepare all proposed orders consistent with, Local Rules 5005-1(G) and 9072-1 and the Court's Guidelines for Preparing, Submitting and Serving Orders, which can be found on the Court’s website at www.flsb.uscourts.gov.

All proposed orders must indicate:

            a.         in the title of the order, the Court’s decision and the name and docket entry number of the underlying matter(s);

            b.         the date or dates of any hearing(s) to which the order relates;

            c.          whether the underlying matters were ex parte;

            d.         whether the order is agreed; and

            e.         the docket entry number of all docketed papers referenced in the order.

All proposed orders must indicate to whom the order is being served and direct an attorney or party to serve the order and file a certificate of service.

Do not call the Courtroom Deputy or Judge Kimball’s law clerks to determine the status of a proposed order unless ten (10) days have elapsed since submission of the proposed order or the underlying matter requested emergency relief. In the meantime, you may check CM/ECF-PACER to determine the status of an order.

            Paper Orders

Counsel shall bring a proposed order prepared in accordance with the Local Rules or applicable Administrative Order granting or denying the relief requested for any matter set on the motion calendar. Please note that the Judge may request that such proposed orders be uploaded via E-Orders after the hearing.

           E-Orders (via CM/ECF)

Judge Kimball favors the use of E-Orders submitted via CM/ECF. Do not submit proposed orders prior to the hearing if the matter is set for hearing, or prior to filing of the certificate of no response when negative notice procedures are used. Do not file proposed orders on ex parte matters prior to having filed and, where applicable, having served the related motion. Prematurely presented proposed orders will be trashed.

            Competing Proposed Orders

Competing proposed orders may be submitted as directed by the Court or where opposing counsel disagree on the text of a proposed order. Competing orders should be submitted via e-mail in WordPerfect format to: EPK_Chambers@flsb.uscourts.gov. The e-mail should indicate the text which differs in the competing proposed orders but should not address any other matter. If competing proposed orders are submitted in this fashion, the parties should advise Judge Kimball’s law clerks of their submission. No other orders or communications should be sent to this e-mail address unless specifically instructed by the Court. 

Adversary Proceedings and Pretrial Conferences

Judge Kimball believes it is important for adversary proceedings to proceed without undue delay. Complaints filed in this court will move swiftly to trial.

The Court will enter its form Order Setting Filing and Disclosure Requirements for Pretrial and Trial. Counsel should read and calendar all items in this order.

Absent extraordinary circumstances, Judge Kimball will grant only one continuance for pretrial conferences. That one continuance may be for as long as the parties require. In general, continuances will not be granted ex parte without a hearing even if agreed.

A proposed Order Dismissing Adversary Proceeding As Settled should be submitted when matters are settled. Filing a Stipulation of Settlement will not close an adversary case.  

Substitute Counsel

Any counsel appearing in substitution for other counsel at a hearing must be familiar with the facts of the case in which they are appearing and the relevant law. Do not send substitute counsel without preparation. 

Chapter 13 Tips

Motions to Rehear, Reconsider or Vacate Orders Dismissing Chapter 13 Cases will be denied unless they comply with Local Rule 9013-1(E). All funds required to bring a Chapter 13 plan current should be in the attorney's trust account prior to filing the motion. Debtors who are not represented by counsel should: (a) attach a photocopy of the cashiers check(s) or money order(s) payable to the Chapter 13 trustee in the amount required to bring the Chapter 13 plan current if the plan is reinstated; and (b) bring the cashiers check(s) or money order(s) to the hearing so that they can be tendered to the Chapter 13 trustee if the case is reinstated.

When considering motions to shorten the prejudice period during which a debtor may not re-file, the Court generally will not permit a plan period to extend beyond sixty (60) months from the filing date of the previously filed Chapter 13 case, and the Court will require vesting of the payments for the benefit of the creditors upon the filing of any new case.

Absent extraordinary circumstances, the Court will require a wage deduction order for plan confirmation.

Chapter 11 Tips

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, and (d) payment of pre-petition claims, are considered evidentiary hearings. In each case, the debtor should be prepared to make an offer of proof consistent with the requirements of the Bankruptcy Code, Bankruptcy Rules, relevant law, and the Local Rules.

No Ex Parte Communications

Judge Kimball does not engage in ex parte communication of any kind. Do not write letters to, e-mail, or call Judge Kimball or his law clerks. Federal Rule of Bankruptcy Procedure 9003 prohibits ex parte communications with the Judge by any party in interest regarding any matter affecting a particular case. Failure to comply with this rule may result in sanctions.