In re: SPANSION INC., et al., Reorganized Debtors.
SPANSION INC., et al., Appellees. JOSEPH RUBINO, Chapter 11 Appellant, Civ. No. 13-338-RGA
Joseph Rubino, San Jose, California; Pro Se Appellant.
Michael R. Lastowski, Esq. and Jarret P. Hitchings, Esq., Duane Morris LLP, Wilmington, Delaware; Kimberly A. Posin, Esq. and Amy C. Quartarolo, Esq., Latham & Watkins LLP, Los Angeles, California; Counsel for Appellees.
RICHARD G. ANDREWS, District Judge.
Appellant Joseph Rubino filed this bankruptcy appeal on February 11, 2013. He appears pro se and has been granted leave to proceed in forma pauperis. His appeal is taken from In re Spansion Inc., Bankr. Case No. 09-10690-KJC (Bankr. D. Del.), which was filed March 1, 2009.
On January 30, 2008, Rubino filed an action in the United States District Court for the Northern District of California raising employment discrimination claims against ACME Building Maintenance, the GCA Service Group of Texas L.P. Inc., Spansion Inc., the California Department of Industrial Relations, and the California Department of Fair Employment and Housing. (D.I. 13 at A032, A212-A233.) Rubino worked on Spansion Inc. property, but was employed by ACME, which provided services to Spansion Inc. ( Id. ) On March 6, 2008, Spansion filed a motion to dismiss. The motion was granted, and Rubino was given leave to amend. (D.I. 13 at A216-A217, A233.) In turn, Rubino filed a first and second amended complaint. Ultimately, Rubino asserted only one claim against Spansion - a discrimination claim for failure to hire Rubino for a general mechanic position. (D.I. 13 at A89, A244, A226.) Spansion answered and asserted affirmative defenses.
Once Spansion's bankruptcy petition was filed, Rubino's employment discrimination case was stayed as to Spansion pursuant to 11 U.S.C. § 362. (D.I. 13 A226.) On April 20, 2009, Rubino filed a motion for relief from stay (Bankr. Case No. 09-10690-KJC at D.I. 292), which was denied on May 18, 2009. ( Id. at D.I. 500) The employment discrimination case proceeded as to the other defendants and, on January 18, 2010, ACME moved for summary judgment, which was granted by the District Court on May 6, 2010. (D.I. 13 at A229, A231, A235-A243.) Judgment was entered against Rubino. He appealed. ( Id. at A244.) On January 6, 2012, the United States Court of Appeals for the Ninth Circuit affirmed the ruling of the District Court. ( Id. at A233.) Rubino sought, and was denied, a rehearing; the appeal was terminated, and the case closed. ( Id. at A250-A251.)
During the pendency of the employment discrimination case, the Office of the United States Trustee appointed an official committee of unsecured creditors for the Chapter 11 cases. ( See Bankr. Case No. 09-10690-KJC at D.I. 106.) On May 27, 2009, the bankruptcy court entered an Order that established bar dates and related procedures for filing proofs of claims and approved the form, manner, and sufficiency of notice of the bar dates. (Bankr. Case No. 09-1 0690-KJC at D.I. 554; D.I. 13 at A31). September 4, 2009 at 4:00 p.m. EST was established as the last date and time by which creditors of the Debtors, other than governmental units, could file a proof of claim against the Debtors' estates on account of prepetition claims. (See id.; D. I. 11, ex. 6.) The proof of claims were to be filed so as to be actually received by the Debtors' claims agent, Epiq Bankruptcy Solutions, LLC at its address in New York. (See Bankr. Case No. 09-10690-KJC at D.I. 554)
On June 26, 2009, the Debtors filed schedules of assets and liabilities and statements of financial affairs. (Bankr. Case No. 09-1 0690-KJC at D.I. 718-729) They were later amended. ( Id. at D. I. 748-49, 773, 856-861, 920-21 and 3237; see also D. I. 13 at A208-A211). Spansion's Schedule F (Bankr. Case No. 09-10690-KJC at D.I. 719) and Amended Schedule F ( id. at D.I. 856) included a contingent, unliquidated and disputed "litigation claim" in an unknown amount for Rubino. On July 16, 2009, Rubino sent a letter to Spansion Inc. Claims Dept. and EPIC Bankruptcy Solutions with an enclosed claim form. (Bankr. Case No. 09-1 0690-KJC at D.I. 4505) A certificate of service completed by Stephen Carptner indicates that the claims forms were mailed to Epiq's New York address. ( See D.I. 13 at A014). The claims agent has no record of receiving a proof of claim from Rubino, and Rubino's proof of claim is not recorded in or reflected on the claims register. (Bankr. Case No. 09-1 0690-KJC at 4518 ex. A.)
On April 7, 2010, the Debtors filed a second amended joint plan of reorganization. (Bankr. Case No. 09-10690-KJC at D.I. 3250) On April 16, 2010, the bankruptcy court entered finding of facts, conclusions of law, and an order confirming the Debtors' second amended joint plan of reorganization. (Bankr. Case No. 09-10690-KJC at D.I. 3334; D.I. 13 at A031.) The plan became effective on May 10, 2010. /d.
On December 10, 2012, Rubino filed a motion to allow payment of claim. (Bankr. Case No. 09-10690-KJC at D.I. 4505) The Debtors opposed the motion on the grounds that Rubino never filed the claim, the claim was time-barred, and that Rubino's claim lacked merit, as demonstrated by the District Court's grant of summary judgment against him. ( Id. at 4518)
On January 4, 2013, counsel for the Debtors wrote and advised Rubino that his motion was set for a hearing on January 22, 2013, and they provided Rubino with the date and time of the hearing. (D.I. 13 at A336-A339.) Rubino was advised that he could appear telephonically if he was unable to appear in person at the hearing. ( Id. ) On January 15, 2013, Rubino filed a declaration that indicated he was aware of the hearing and the call-in procedures used by the bankruptcy court. (Bankr. Case No. 09-10690-KJC at D.I. 4519.) The declaration states that he sent Epic a copy of his proof of claim, the July 16, 2009 letter, and a copy of his employment discrimination lawsuit. ( See id. ) The declaration further states that Rubino called Epiq and was told it had received the claim form, but that it had not been processed. ( Id. ) The declaration further asserts that Rubino was later told by Epiq that the proof of claim could have been lost, and that he should have sent it by certified mail. (/d.)
Rubino did not appear at the hearing, either in person or by telephone. (Bankr. Case No. 09-10690-KJC at D. I. 4543.) Nor was the bankruptcy court aware of any communication by Rubino with it, other than his written submissions. (Bankr. Case No. 09-10690-KJC at D. I. 4543 at 7.) The bankruptcy court proceeded to hear the matter. During the hearing the bankruptcy court stated,
... the gist of the response is that Mr. Rubino has no claim. The claims agent having no record of a claim ever having been filed, and along with its objection the reorganized debtors have indicated - have included materials which show claims have been received. Mr. Rubino indicates in his submission that he did file a proof of claim, but there is ...