In Re 69 North Franklin Turnpike, LLC
693 F. App'x 141
3rd Cir.
2017
Check Treatment
Docket

Grace S. Wong, Member-69North Franklin Turnpike, LLC, Appellant v. 69 NORTH FRANKLIN TURNPIKE, LLC

No. 16-1383

United States Court of Appeals, Third Circuit

August 1, 2017

141

cific investigatory limitations of two existing confidential informants, id. at 1009; specific failed attempts to develop other informants, id. at 1010-11; specific named individuals who were arrested—one of whom leaped from a second story window to avoid capture—yet did not provide useful information, id. at 1014; several members of the conspiracy who were demonstrably wary of police, id. at 1014-15; and the difficulty of infiltrating a gang in an area where the gang members grew up together. Id. at 1008-09. Finally, the Application incorporated the affidavits used in all seven of the Initial Authorizations.

Importantly, the Application states Ellis “has been identified as a member of the East Hills Bloods and a heroin trafficker.” Id. at 991. The Application supports this assertion by setting out, in detail, nine intercepted conversations between Ellis (on Target Telephone #18) and two members of the East Hills Bloods, Damon Agurs and Ronald Ashby, in which Ellis arranged to sell heroin provided by Agurs and Ashby, see id. at 991-97; and two intercepted conversations between members of the East Hills Bloods and persons with two other telephone numbers who were in regular contact with Target Telephone #18. See id at 997-1000. Further, the Application describes pen register and trap-and-trace data collected from other target phones indicating Target Telephone #18 was in frequent contact with other members of the conspiracy and the East Hills Bloods. Id. at 1000-01. Additionally, the Application demonstrates Ellis‘s own wariness of the police and willingness to engage in counter-surveillance; it describes an intercepted call between Ellis and Agurs in which Agurs tells Ellis, “I got your back. I‘m right here. I‘ll call you if [the police] make a move.” Id. at 995. Thus, the Application demonstrated Ellis‘s direct involvement in the East Hills Bloods drug trafficking and “the difficulty of penetrating” that organization due to its “secretive nature” and “propensity towards violence.” ; see also (“Continued physical surveillance was likely to be fruitless because most of the associates were surveillance conscious, avoiding locations that were visible to security cameras. They were also occasionally aware of surveillance vehicles when they were present (some of these defendants even alerted each other to the presence of surveillance vehicles).“).

The District Court did not abuse its discretion in finding the Application contained a sufficient factual predicate to allow the issuing court to conclude other investigative techniques, even if used in relation to Ellis, had not and likely would not uncover the full scope of the conspiracy. See .

III.

Accordingly, we find the Application contained a statement of necessity and the District Court did not abuse its discretion in finding the statement contained a sufficient factual predicate. For these reasons, the judgment of conviction and sentence will be affirmed.

IN RE: 69 NORTH FRANKLIN TURNPIKE, LLC

Grace S. Wong, Member-69North Franklin Turnpike, LLC, Appellant

No. 16-1383

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 5, 2017

(Filed: August 1, 2017)

Harold C. Petzold, Esq., Ringwood, NJ, for Debtor-Appellant

Scott Freedman, Esq., Dilworth Paxson, Cherry Hill, NJ, Anne M.P. Kelley, Esq., Horn Goldberg Gorny Daniels Plackter & Weiss, Voorhees, NJ, Francis P. Maneri, Esq., Dilworth Paxson, Philadelphia, PA, for Defendant-Appellee

Before: CHAGARES, GREENAWAY, JR., VANASKIE, Circuit Judges.

OPINION*

CHAGARES, Circuit Judge.

Debtor 69 North Franklin Turnpike, LLC (the “LLC“) appeals from the District Court‘s dismissal of its pro se Notice of Appeal from two decisions of the Bankruptcy Court. The District Court concluded that the LLC could not proceed on its appeal because it was not represented by licensed legal counsel. We will affirm.

I.

We write solely for the parties and therefore recite only the facts necessary to our disposition. The LLC was the owner of a property located at 69 North Franklin Turnpike in Bergen County, New Jersey (the “Property“). The LLC executed a mortgage in favor of the respondent, PNC Bank, to secure a loan made by Grace S. Wong, who was a shareholder in the LLC. Wong defaulted on the loan, and PNC thereafter filed suit for damages against Wong as borrower and several guarantors, including the LLC. PNC Bank also filed foreclosure actions to secure the loan, including an action to foreclose the mortgage given by the LLC on the Property.

Final judgment in the foreclosure action was entered in PNC‘s favor. A Sheriff‘s Sale of the Property was scheduled for March 13, 2015 and postponed until April 10, 2015. Wong filed a pro se Chapter 11 petition on behalf of the LLC on April 6, 2015. The Sheriff‘s sale was again postponed due to the filing of the petition.

On April 21, 2015, PNC filed a Motion to Dismiss the Bankruptcy Petition, to bar future filings, for sanctions, and for other relief with respect to the Property. Before that motion was decided, the LLC‘s bankruptcy case was administratively dismissed.

On May 8, 2015, on the same day that Sheriff‘s Sale of the Property was scheduled to occur, Wong‘s husband, Steven Wong, filed for bankruptcy. PNC again postponed the Sheriff‘s Sale. The Sheriff‘s Sale of the Property was conducted in early June 2015,1 and the Property was sold.

The Bankruptcy Court, in an “Order Barring Future Filings for Two (2) Years” dated July 28, 2015, confirmed that the Court had administratively dismissed the LLC‘s bankruptcy case, thereby mooting PNC‘s Motion to Dismiss. Appendix (“App.“) 19. The Bankruptcy Court further concluded that the bankruptcy case was filed in bad faith. App. 19. The Court additionally noted that Wong had represented to the Court that she had no objection to a two year bar on future filings. App. 19. Thus, the Court prohibited the LLC from filing another petition for relief under the Bankruptcy Code for a period of two years from the date of entry of the order. App. 19.

Thereafter, Wong, appearing pro se on behalf of the LLC, filed a Motion for Reconsideration of the July 28, 2015 Order. Wong also filed an emergency “Motion to Joinder.” Wong is not an attorney. The Bankruptcy Court held argument on September 1, 2015. At that hearing, the Court explicitly warned Wong that she was not permitted to appear pro se on behalf of the LLC, stating inter alia, that “there was to be no further appearance pro se, [and] that the entities needed to retain an attorney to represent them.” App. 32.

On November 2, 2015, Wong filed a pro se Motion for Stay Pending Appeal on behalf of the LLC. PNC filed a Motion for an Order Striking the Motion for Stay Pending Appeal, which the Bankruptcy Court granted on December 9, 2015.

Wong, on behalf of the LLC, filed a pro se Notice of Appeal to the District Court. PNC moved to dismiss the Notice of Appeal. The District Court granted the motion and dismissed the case. In its dismissal order, the District Court explicitly reiterated that “Ms. Wong is prohibited from submitting additional filings on behalf of [the LLC] in the matter.” App. 33.

Wong filed a Notice of Appeal to our Court on February 16, 2016 in which she identified herself as a Member of the LLC and purported to appeal on behalf of the LLC. Wong subsequently made several filings on the appellate docket, including “Submissions on Appellate Jurisdiction” dated March 18, 2016 and a Motion to Stay dated April 25, 2016. Counsel for the LLC entered an appearance on July 14, 2016.

II.2

On appeal, the LLC argues that the District Court erred in dismissing the appeal and not giving it an opportunity to cure the deficiency. We do not agree.

The District Court concluded that dismissal was appropriate because the Notice of Appeal was filed by Wong, a non-attorney. It is well established that a corporate entity such as a limited liability company may not proceed pro se and must be represented by legal counsel. (“It has been the law for the better part of two centuries ... that a corporation may appear in the federal courts only through licensed counsel.“); (same). The LLC does not escape this rule merely because Wong is its managing member.

The LLC next argues that it was entitled to an opportunity to cure the deficiency. Several of our sister Circuit Courts of Appeals have observed that a pro se notice of appeal may proceed where the corporate entity immediately retains counsel who promptly enters an appearance and undertakes the representation. See, e.g., (“[A] corporate officer may sign and file a notice of appeal on behalf of the corporation, as long as the corporation then promptly retains counsel to take up the cudgels and prosecute the appeal.“); (same). This case is plainly distinguishable, however, as Wong evinced a “clear[] intent[ion]” to proceed pro se. . Indeed, despite multiple warnings about representing the company or filing on its behalf, App. 32, Wong purported to represent the LLC both before the District Court and continued to do so before our Court. In such circumstances, permitting the LLC an opportunity to cure “would eviscerate the requirement that corporations and other entities be represented by counsel.” . The District Court therefore did not err in dismissing the Notice of Appeal without an opportunity to cure.

IV.

For the foregoing reasons, we will affirm the District Court‘s order dismissing the case.

Paul David WOOSLEY, Appellant v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF CONNECTICUT; Honorable Alvin W. Thompson, United States District Judge; David H. Smith; Kimberly A. Smith

No. 16-3584

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit L.A.R. 34.1(a) March 17, 2017

(Opinion Filed: June 14, 2017)

Notes

1
There is some discrepancy in the record as to the date of the Sheriff‘s Sale. PNC states that it was held on June 5, 2015. PNC Br. 2. However, Wong stated that it was held on June 10, 2015. Supplemental Appendix 6.
2
The Bankruptcy Court had jurisdiction over this matter pursuant to 28 U.S.C. § 157(a) and (b)(1). The District Court had jurisdiction pursuant to 28 U.S.C. § 158(a). We have appellate jurisdiction under 28 U.S.C. § 1291.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
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