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IN RE: GAYLE H. BAGSBY,
Debtor.
_______________________________________________
E. COVINGTON JOHNSTON, JR.,
Appellant,
v.
HENRY E. HILDEBRAND, III, Chapter 13 Trustee; UNITED
STATES TRUSTEE, Region 8,
Appellees. |
No. 20-5497 |
On Appeal from the Bankruptcy Appellate Panel for the Sixth Circuit;
No. 19-8017—Jimmy L. Croom, Jessica E. Price Smith, and
Tracey N. Wise, Bankruptcy Appellate Panel Judges.
United States Bankruptcy Court for the Middle District of Tennessee at Nashville;
Nos. 3:19-bk-01810; 3:18-bk-01762; 3:16-bk-08631—Charles M. Walker, Judge.
Decided and Filed: July 19, 2022
Before: ROGERS, STRANCH, and DONALD, Circuit Judges.
_________________________
OPINION
_________________________
BERNICE BOUIE DONALD, Circuit Judge. Attorney E. Covington Johnston filed bare-bones
Chapter 13 bankruptcy petitions on behalf of Gayle Bagsby in 2016 and 2018 at the request of Gayle
Bagsby’s daughter, Elizabeth Pace Bagsby. There was only one glaring issue with this arrangement—
one cannot file for bankruptcy on behalf of a deceased person and Gayle Bagsby died on February 28,
2006. Elizabeth Bagsby was Administratix of her mother’s probate estate. After the dismissal of the
2018 petition, Elizabeth Bagsby, proceeding pro se, filed three more Chapter 13 petitions on Gayle
Bagsby’s behalf.
In March 2019, the Chapter 13 Trustee filed a motion to dismiss and a motion for sanctions
against Elizabeth Bagsby after she filed yet another Chapter 13 petition, pro se. As a result, the
bankruptcy court ordered Mr. Johnston to appear and show cause as to why he should not be subject to
sanctions for filing the two Chapter 13 petitions on behalf of Gayle Bagsby, a deceased person, back in
2016 and 2018.1 After the show cause hearing, the bankruptcy court reopened the first two cases filed in
Gayle Bagsby’s name and issued sanctions sua sponte against Mr. Johnston and Elizabeth Bagsby. In
particular, the bankruptcy court determined that 1) Mr. Johnston failed to conduct any inquiries or legal
research, 2) there was no basis in existing law to support a reasonable possibility of success, and 3) the
cases were filed for the express purpose of delaying foreclosure actions. Therefore, the bankruptcy
court concluded Mr. Johnston violated Rule 9011 of the Federal Rules of Bankruptcy Procedure and
issued sanctions. Mr. Johnston appealed to the Bankruptcy Appellate Panel of the Sixth Circuit
(“BAP”), which affirmed after finding that the district court did not abuse its discretion. See In re
Bagsby, Nos. 19-8017/2018/8019, 2020 WL 2025906 (B.A.P. 6th Cir. Apr. 27, 2020). For the reasons
set forth below, we AFFIRM the bankruptcy court’s order imposing sanctions against Mr. Johnston. |
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SKATEMORE, INC., a Michigan corporation dba Roll
Haven Skating Center; SLIM’S REC, INC., a Michigan
corporation dba Spartan West Bowling Center/Beamers
Restaurant; MR. K ENTERPRISES, INC., a Michigan
corporation dba Royal Scot Golf & Bowl; M.B. AND D.
LLC, a Michigan limited liability company dba
Fremont Lanes; R2M, LLC, a Michigan limited
liability company dba Spectrum Lanes & Woody’s
Press Box,
Plaintiffs-Appellants,
v.
GRETCHEN WHITMER, in her official capacity as
Governor of the State of Michigan; ROBERT GORDON,
in his official capacity as Director of the Michigan
Department of Health and Human Services; MICHIGAN
DEPARTMENT OF HEALTH AND HUMAN SERVICES, a
Michigan Administrative Agency,
Defendants-Appellees. |
No. 21-2985 |
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:21-cv-00066—Hala Y. Jarbou, District Judge.
Argued: April 27, 2022
Decided and Filed: July 19, 2022
Before: CLAY, GRIFFIN and WHITE, Circuit Judges.
_________________________
OPINION
_________________________
CLAY, Circuit Judge. Plaintiffs Skatemore, Inc., Slim’s Rec, Inc., Mr. K Enterprises,
Inc., M.B. and D. LLC, and R2M, LLC, operators of bowling alleys and roller-skating rinks in
Michigan, sued Michigan Governor Gretchen Whitmer, former Michigan Department of Health
and Human Services (“MDHHS”) Director Robert Gordon, and the MDHHS alleging that
various orders limiting the use of Plaintiffs’ properties early in the COVID-19 pandemic
constituted an unconstitutional taking in violation of the Fifth Amendment of the U.S.
Constitution and Article X of the Michigan Constitution. The district court found that
Defendants were entitled to immunity pursuant to the Eleventh Amendment and accordingly
dismissed Plaintiffs’ complaint for lack of jurisdiction. The district court also denied Plaintiffs’
motion to amend their complaint. We AFFIRM for the reasons set forth below. |
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