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|
Individual Appearing Without Counsel (Pro Se)
No Ex Parte Communications
Local Rules and Forms; Administrative Orders
Papers Filed with the Court
Arranging Telephonic Appearances
Telephone Conferences for Specially Set Matters
Time of Hearings
Chapter 11 Fast Track
Chapter 13 Hearings
Calendar: Obtaining, Continuing, and Canceling Hearing Dates
Adversary Proceedings and Pretrial Conferences
Status of Submitted Orders and Matters Under Advisement
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.