578 F. App'x 962
11th Cir.2014Background
- Donald Tobkin was disbarred in Florida in March 2010 and the Florida Supreme Court entered a disciplinary cost judgment of $12,217.39 against him.
- Tobkin filed for bankruptcy in September 2011.
- The Florida Bar brought an adversary proceeding in bankruptcy court seeking a determination that the cost judgment was non-dischargeable under 11 U.S.C. § 523(a)(7) as a fine or penalty payable to a governmental unit.
- During discovery Tobkin served requests for admission including that the Bar "is not a government entity," and the Bar (improperly) answered "Admitted."
- The bankruptcy court held the Bar is a "governmental unit" for § 523(a)(7) purposes because it acts as an agency/instrumentality of the Florida Supreme Court, and characterized the cost judgment as a fine/penalty; the district court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Florida Bar is a "governmental unit" under § 523(a)(7) | Tobkin relied on the Bar's admission that it is not a "government entity" | Bar argued it is an agency/instrumentality of the Florida Supreme Court and thus a governmental unit | Court held the Bar is a governmental unit (admission improper as a legal conclusion) |
| Whether the disciplinary cost judgment is a "fine, penalty, or forfeiture" under § 523(a)(7) | Tobkin implied the cost judgment should be dischargeable | Bar argued the cost judgment is a disciplinary fine/penalty, not compensation for pecuniary loss | Court held the cost judgment is in the nature of a fine/penalty and thus non-dischargeable |
| Whether Tobkin preserved argument about reservation of jurisdiction to plead counterclaims | Tobkin mentioned it in table of contents | — | Court treated the claim as abandoned for lack of developed argument |
| Whether an admission that a party is not a "government entity" binds legal characterization under Rule 36 | Tobkin relied on the admission to foreclose Bar's governmental-unit status | Bar contended the admission did not control and was an improper admission as to a legal conclusion | Court held requests for admissions cannot demand legal conclusions and the phrasing differed from statutory "governmental unit," so admission was not controlling |
Key Cases Cited
- In re Mitchell, 633 F.3d 1319 (11th Cir.) (standard of review for bankruptcy appeals)
- Doe v. Fla. Bar, 630 F.3d 1336 (11th Cir.) (state action found in certain Bar certification/disciplinary contexts)
- In re Wade, 948 F.2d 1122 (9th Cir.) (attorney disciplinary organization can be a governmental unit)
- In re Cillo, 159 B.R. 340 (Bankr. M.D. Fla.) (Florida Bar held to be a governmental unit under § 101(27))
- Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324 (11th Cir.) (issues not argued on appeal are abandoned)