|
Honorable Erik P. Kimball |
| Chamber Location: | U.S. Bankruptcy Court Flagler Waterview Building 1515 North Flagler Drive 8th Floor --- West Palm Beach, FL 33401 |
| Courtroom Location: | U.S. Bankruptcy Court Flagler Waterview Building 1515 North Flagler Drive 8th Floor --- West Palm Beach, FL 33401 |
| Law Clerk | Michelle Jaffe (561) 514-4140 |
| Law Clerk | Eric Pendergraft (561) 514-4140 |
| Courtroom Deputy | Cindy Klopp (561) 514-4143 |
|
Special Info/procedures:
Individual Appearing Without Counsel (Pro Se)
No Ex Parte Communications Courtroom Decorum Local Rules and Forms; Administrative Orders Papers Filed with the Court Hearings Telephonic Appearances Arranging Telephonic Appearances Telephone Conferences for Specially Set Matters Time of Hearings Evidentiary Hearings Chapter 11 Fast Track Chapter 13 Hearings Courtroom Electronics Calendar: Obtaining, Continuing, and Canceling Hearing Dates Emergency Matters Adversary Proceedings and Pretrial Conferences Status of Submitted Orders and Matters Under Advisement Substitute Counsel Transcript Information 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 at http://www.flsb.uscourts.gov/Pro_Se/Pro_se.html. Pro se parties
must comply with the Bankruptcy Code, the Bankruptcy Rules, the Federal Rules
of Civil Procedure, 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 www.flsb.uscourts.gov or from the Clerk’s Office. 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 for any purpose other than to address
scheduling concerns or to arrange a telephonic appearance when permitted by the
Court. If you file a complaint or 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 complaint or motion and a copy of any notice of hearing to all people and companies entitled to receive them under the relevant rules. Top Judge Kimball does not engage
in ex parte communication of any kind.
Federal Rule of Bankruptcy Procedure 9003 prohibits ex parte communications
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
or his law clerks. Except in extremely
unusual circumstances, each letter or e-mail addressed to Judge Kimball or his
law clerks, or 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. Top Whether or not the Judge is
presiding, while at the courthouse (including during section 341 meetings of
creditors) counsel 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. Cell phones may not be used for
spoken communication 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.
Counsel may use cell phones and Blackberry and similar devices to
consult their personal calendars as necessary.
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.
Top Local Rules and Forms;
Administrative Orders 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. Top 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. Top 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. 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 – counsel of record for the Debtor, the trustee, counsel
for the trustee, and counsel for any committee must appear in person; other
parties in interest may appear by telephone; c. 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; 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. 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 may 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 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. Top Arranging Telephonic Appearances Except for certain specially set matters
(see below), all telephonic appearances before Judge Kimball will be
through the services of CourtCall, an independent,
fee-based conference call service.
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 CourtCall at (888) 882-6878 not later than 3:00
p.m. prevailing Eastern Time on the court day prior to the hearing date. 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. 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 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 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. Top Telephone Conferences for Specially Set Matters Subject to prior approval,
Judge Kimball may permit telephonic appearances via conference call arranged by
counsel. Such appearances will be
limited to hearings that are specially set and that are scheduled separate from
other matters. If you wish to arrange a
conference call for a specially set hearing, contact Cindy Klopp,
Courtroom Deputy, (561) 514-4143, at least 48 hours in advance of the hearing
to seek permission. The denial of a
request to arrange an independent conference call will not be an appropriate
basis for requesting a continuance of the hearing. If the conference call request is permitted,
Judge Kimball must be designated the moderator or leader of the conference call
and counsel arranging the conference call must provide Ms. Klopp
with the appropriate code. Counsel
arranging the conference call will be required to provide the conference number
and participant code to all interested parties.
Top 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.
Traffic does not qualify as an unanticipated emergency except in extreme
circumstances. If you are late and your
case is called before you arrive, it is likely the matter will either be denied
or dismissed 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. Top 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. Top 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.
Top 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 by the court reporter. All
rules regarding courtroom decorum apply, including dress code and use of cell phones. Please be advised that Judge Kimball often
listens to the uncontested Chapter 13 docket from chambers. Top 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 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. Top Calendar: Obtaining, Continuing, and Canceling Hearing
Dates With the exception of certain
Chapter 7 and
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). Failure to timely serve a
notice of hearing and file a certificate of service thereof may result in
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 on
the motion calendar 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. Continuances for pretrial conferences or
specially set matters generally will not be granted without a hearing, even if
agreed. 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. Top 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 immediate relief. The movant must
comply with Local Rule 9075-1. The movant should call the Courtroom Deputy or the Judge’s law
clerks 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 the hearing not going forward. Top 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 carefully 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 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.
Status of Submitted Orders and Matters Under Advisement
Check CM/ECF-PACER to determine
the status of an order. For routine matters, you may call Judge Kimball's Courtroom
Deputy to inquire about the status of an order only if ten days have elapsed from
the date the order was submitted. For matters taken under advisement, you may call
Judge Kimball's Courtroom Deputy to inquire about the status of the matter only if
sixty days have elapsed from the later of the close of the briefing schedule or the
date the matter was taken under advisement.
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. Transcripts of hearings can
be obtained by contacting Ouellette & Mauldin Court Reporters, 28 W.
Flagler St., Suite 808, Miami, Florida 33130.
Telephone numbers: (305) 358-8875 or (800) 850-8875. | |