Notice of Change in Service Provider for Telephonic Appearances - effective April 13, 2020.
UNITED STATES BANKRUPTCY COURT
Flagler Waterview Building
1515 North Flagler Drive, 8th FloorCourtroom: B
West Palm Beach, FL 33401
None at this time.
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.
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.
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.
The Local Rules, Administrative Orders, and Local Forms are posted on the Court’s website. Judge Kimball expects that all counsel and pro se parties appearing before the Court will be familiar with these documents as updated and amended from time to time.
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.
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.
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, even when the Court holds hearings in person. There is no geographic limitation regarding who may appear by telephone.
Use of a speakerphone or a public telephone is prohibited.
No person may record the proceedings in any manner.
Persons participating in a hearing by telephone must: (a) state their name each time they speak; (b) speak loudly, clearly, and slowly; and (c) place the telephone on mute when they are not talking. Failure to do so may result in an incomplete or inaccurate record of the proceedings.
When appearing by telephone, you are connected directly with the sound system in the courtroom and will be able to hear all activity before the Court just as if you were in the courtroom. As with appearances in person, you must wait for the Judge to call the case, at which point he will request appearances and direct the manner in which the hearing proceeds. At the conclusion of your matter, you may hang up without requesting to be excused.
If a person schedules a telephonic appearance and then fails to respond to the call of a matter, the Court may treat the failure to respond as a failure to appear.
When persons are participating by telephone, those 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.
Except when the Court schedules a hearing exclusively by telephone: (a) 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; (b) if there is an equipment failure for any reason the Court may proceed with the hearing; (c) those appearing by telephone assume the risk of prejudice that may result from not being present in person and therefore possibly being unable to advance their positions; and (d) if the Court determines it is appropriate to receive evidence, those appearing by telephone may not introduce evidence or question witnesses and the hearing will not be continued or rescheduled to accommodate those appearing by telephone.
Unless the Court specifically sets a trial or evidentiary hearing by telephone or video conference, all counsel participating in presentation and all witnesses must appear in person. Counsel or a party may listen to a trial or evidentiary hearing by telephone, but may not participate in any way.
Unless the Court specifically sets a chapter 11 confirmation hearing by telephone or video conference, the following parties must appear in person: the debtor (if an individual); a duly authorized representative of the debtor (if not an individual); debtor’s counsel; and counsel for all objecting parties.
Unless otherwise ordered, Judge Kimball permits telephone appearances only through CourtSolutions, an independent, fee-based conference call service. To appear by telephone, you must establish an account with CourtSolutions and follow its procedures. It is wise to establish an account well ahead of an initial telephone appearance. You may contact CourtSolutions on the web at www.court-solutions.com/SignUp or by telephone at (917) 746-7476.
Absent an emergency, telephone appearances must be arranged with the conference call service not later than 3:00 p.m. prevailing Eastern Time on the court day prior to the hearing date.
Each participant must dial into the call no later than 10 minutes prior to the scheduled hearing. The conference call service will not call participants.
If requested not later than two court days prior to the hearing and approved by Judge Kimball, the conference call service fee may be waived for pro se parties who are unable to pay the fee, parties represented on a pro bono basis, and certain governmental entities.
If Judge Kimball sets a hearing by video conference, unless ordered otherwise, the following procedures apply:
The hearing will take place only by video conference. Do not go to the courthouse. Attorneys must advise their clients not to appear at the courthouse.
The hearing will take place using the services of Zoom Video Communications, Inc. Zoom will provide a password-protected link for the appropriate video conference to those who register to participate in accordance with the following paragraph and who have been approved by the Court. All approved participants must conduct a pre-hearing test of Zoom using the same equipment that they intend to use during the hearing.
Each person wishing to participate in the hearing by video conference must register for the video conference using the web address provided in the notice of hearing generated by the Court or in an order entered by the Court. Participants must register at least 24 hours prior to the hearing, except for hearings set on an emergency basis, in which case participants must register at least one hour prior to the hearing. If the Court sets more than one matter for hearing by video conference at the same date and time, participants must register for the video conference only once for each case (including jointly administered cases) and may be heard on all matters set during the video conference.
Parties should limit video conference participation to those necessary for presenting the matter(s) set for hearing. If the number of persons wishing to participate in the video conference, in the Court’s view, exceeds the number that would permit the efficient and reliable transmission of the hearing by video conference, the Court may require certain persons to participate in the hearing only by telephone. The Court will provide to each person participating by telephone separate dial-in instructions, which may be used with any telephone equipment.
The general public is invited to listen to the hearing by telephone. Any person wishing to listen to the hearing by telephone may contact Dawn Leonard by electronic mail at Dawn_Leonard@flsb.uscourts.gov to obtain dial-in instructions.
No person may record the proceedings from any location by any means. The audio recording maintained by the Court will be the sole basis for creation of a transcript that constitutes the official record of the hearing.
In accordance with Federal Rule of Civil Procedure 43(a) (made applicable by Federal Rule of Bankruptcy Procedure 9017), for good cause and in compelling circumstances a witness may be permitted to testify by contemporaneous transmission from a location other than the courtroom. The Court may determine to permit examination and/or cross-examination of witnesses by video conference. If so, the Court will administer the oath to each remote witness during the video conference and witness testimony will have the same effect and be binding upon each remote witness in the same manner as if such remote witness was sworn in by the Court in person in open court. As additional safeguards if the Court allows remote testimony, the Court will require as follows: (a) if requested, each remote witness must disclose the city, state, and country, and the type of place (such as home or office), where she or he is located while testifying; (b) no other person will be permitted to be in the same room with any remote witness, unless specifically authorized by the Court; (c) each remote witness will have with her or him only those documents also provided to the Court for consideration in connection with the matter(s) set for hearing and no other documents or data, unless specifically authorized by the Court; and (d) no person may communicate with a witness during his or her testimony, except by direct examination or cross-examination on the record, unless specifically authorized by the Court.
Although conducted using video conferencing technology, the hearing is a court proceeding. The formalities of the courtroom must be observed. All participants must dress appropriately, exercise civility, and otherwise conduct themselves in a manner consistent with the dignity of the Court.
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.
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.
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 telephone, 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.
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.
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.
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 on 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.