In Re: Ernie Haire Ford, Inc., d.b.a. Ernie Harie Megavolume Superstore, d.b.a. BigDog Motorcycles of Tampa, d.b.a. Quicklane Tire & Auto Center, d.b.a. Ernie Haire Used Car Supercenter of Tampa, d.b.a. Ernie Haire Used Car Auto Mall, d.b.a. Indian Motorcycle of Tampa, Debtor. BENJAMIN ATKINSON, Plaintiff - Appellant,
ERNIE HAIRE FORD, INC., Defendant - Appellee
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:12-cv-01494-MSS, Bkcy No. 8:08-bk-18672-MGW.
For BENJAMIN ATKINSON, Plaintiff - Appellant: Donald Joseph Schutz, Schutz Litigation, LLC, ST PETERSBURG, FL; Ruel W. Smith, Hinshaw & Culbertson, LLP, TAMPA, FL.
For ERNIE HAIRE FORD, INC., Defendant - Appellee: Geoffrey Todd Hodges, GT Hodges, PA, LUTZ, FL.
Before WILSON, PRYOR and ROSENBAUM, Circuit Judges.
WILSON, Circuit Judge.
Appellant Benjamin Atkinson appeals from the district court's affirmance of the bankruptcy court's orders granting Appellee Ernie Haire Ford, Inc.'s (Debtor) motion to modify its Second Amended and Restated Chapter 11 Plan (Second Plan) and confirming the Debtor's Third Amended Plan of Reorganization (Third Plan). Because Atkinson's interest in avoiding liability is not an interest protected or regulated by the Bankruptcy Code, he has failed to satisfy our person aggrieved standard. Accordingly, we affirm.
The Debtor, a licensed Ford dealer operating in Hillsborough County, Florida, filed for Chapter 11 bankruptcy on November 24, 2008. The Debtor's Second Plan was confirmed by the bankruptcy court on October 14, 2009. Among other
things, the Second Plan empowered a liquidating agent, at its discretion, to sue third parties alleged to owe money to the bankruptcy estate. The Second Plan also provided that " [a]ll Litigation not already pending at the time of the Effective Date shall be brought prior to the Litigation Bar Date or shall be conclusively deemed waived or abandoned."  Additionally, the Second Plan allowed the bankruptcy court to " enjoin any Person from commencing, instituting, or pursuing a suit, action, or claim . . . that is barred pursuant to the Plan" upon the request of " any defendant."
Appellant Benjamin Atkinson is a former creditor who was employed by the Debtor from 1999 through 2005. On December 30, 2011, well after the passage of the Litigation Bar Date, the liquidating agent named Atkinson as a defendant in 16 adversary proceedings alleging claims of fraud and misappropriation related to Atkinson's employment. Atkinson moved to enjoin the liquidating agent from proceeding with these claims on the grounds that they were filed after the Litigation Bar Date. In response, the Debtor filed a motion to modify the Second Plan that sought to amend the definition of the Litigation Bar Date to allow the adversary proceedings against Atkinson to go forward. The bankruptcy court heard the Debtor's motion during a hearing held on March 6, 2012 and announced its ruling three days later on March 9.
The bankruptcy court determined that a modification could occur based on its finding that the Second Plan had not been substantially consummated because the Debtor still controlled a number of assets--valued between two and three million dollars--that were required to be sold under the Second Plan. The Debtor subsequently filed its Third Plan, which modified the Litigation Bar Date to allow the adversary proceedings against Atkinson to go forward. The bankruptcy ...