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Tagged Opinion

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

In re:

Case No. 21-18653-PDR

Majestic Gardens Condominium C

Association, Inc.,

Chapter 11

Debtor.

/

Abdul Ali Syed et al,

Plaintiffs,

v. Adv. Case No. 22-01137-PDR

Majestic Gardens Condominium C

Association, Inc., et al,

Defendants.

/

ORDER DENYING MOTION TO VACATE

Peter D. Russin, Judge

United States Bankruptcy Court

_____________________________________________________________________________

ORDERED in the Southern District of Florida on August 9, 2022.

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Debtor Majestic Gardens is a condominium association. The Plaintiffs are a 

collection of disgruntled unit owners. On April 8, 2022, the Plaintiffs filed this 

Adversary Proceeding against the Debtor, its Board Members, and two law firms 

retained by the Debtor.1 On April 11, 2022, the Court issued the Summons.2 The 

Summons includes many important dates including, for example, the deadline to 

respond to the complaint (May 11, 2022) and the date for the Status Conference (June 

15, 2022). Because the summons contains so many important deadlines, Fed. R. 

Bankr. P. 7004(e) and Local Rule 7004-2 require that it be served with the complaint 

within 7 days after the summons is issued. In this case, that means Plaintiffs had to 

serve the Summons and the Complaint by April 18, 2022.

The Court also issued its Order Setting Status Conference and Establishing 

Procedures and Deadlines (the “Order”) the same day it issued the summons.3 The 

Order provides many important deadlines, such as the deadlines to meet and confer 

with the opposing party, to assert jury trial rights, and to object to this Court’s entry 

of final orders. To ensure parties have sufficient time to comply with these deadlines, 

the Order requires that it be served with the Summons and Complaint. The failure 

to comply with the Order or to appear at the Status Conference is sanctionable by, 

among other things, dismissal of the Adversary Proceeding. The record reflects, and 

1 (Doc. 1).

2 (Doc. 2).

3 (Doc. 3).

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the Plaintiffs acknowledge, that they did not serve the Summons, Complaint, or 

Order by April 18, 2022. 

Despite this failure, Fed. R. Bankr. P. 7004(e) and Local Rule 7004-2 allow the

Plaintiffs to request an alias summons with new enforceable deadlines. But Plaintiffs 

did not request an alias summons, leaving them without a valid summons to serve.

On May 2, 2022, despite having not been served, one of the defendant law firms 

filed a motion to dismiss based, in part, on the Plaintiffs’ failure to obtain leave of 

court before seeking relief directed against court-approved counsel.4 See Tufts v. Hay, 

977 F.3d 1204, 1208 (11th Cir. 2020). In response, the Plaintiffs amended their 

complaint on May 13, 2022, and removed both law firms from the Adversary 

Proceeding.5

On June 15, 2022, the Court held the Status Conference as scheduled. 

Compounding their errors, the Plaintiffs did not appear. The Debtor, despite having 

never been served, attended. At the Status Conference, the Court discovered that—

though this matter had been pending for over two months—the Plaintiffs had failed 

to timely serve any of the required documents in this case or take appropriate action 

to correct that mistake. That issue, coupled with the Plaintiffs’ failure to appear at 

the Status Conference, caused the Court to dismiss the Adversary Proceeding.6

4 (Doc. 5).

5 (Doc. 9).

6 (Doc. 12).

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On June 23, 2022, the Plaintiffs requested that the Court vacate the Dismissal 

Order under Fed. R. Bankr. P. 9006 and 9024.7 The Debtor opposes the relief.8

Fed. R. Bankr. P. 9024 applies Fed. R. Civ. P. 60 to bankruptcy proceedings. 

Under Rule 60(b)(1), a party may seek relief from a judgment, order, or proceeding 

for “mistake, inadvertence, surprise, or excusable neglect.” Similarly, under Fed. R. 

Bankr. P. 9006(b)(1), “when an act is required or allowed to be done at or within a 

specified period by these rules or by a notice given thereunder or by order of court, 

the court for cause shown may . . . on motion made after the expiration of the specified 

period permit the act to be done where the failure to act was the result of excusable 

neglect.” Excusable neglect is an equitable concept that allows courts to consider 

providing relief from a prior order or judgment to a party based on considerations 

such as “the danger of prejudice to the non-moving party, the length of the delay and 

its potential impact on judicial proceedings, the reason for the delay, including 

whether it was in the reasonable control of the Movant, and whether the Movant 

acted in good faith.” Pioneer Inv. Serv. v. Brunswick Assocs. LP, 507 U.S. 380, 395 

(1993); Dillworth v. Guerra (In re Garcia), 627 B.R. 923, 926 (Bankr. S.D. Fla. 2020). 

“The most important factor is the reason for the delay which requires a statement of 

the reasons and a satisfactory explanation for the delay.” Mukamal v. Christal 

Express Corp. (In re Tiles & Stones, Inc.), No. 10-03465-AJC, 2011 WL 1048617, at *2 

(Bankr. S.D. Fla. Mar. 18, 2011).

7 (Doc. 15).

8 (Doc. 19).

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The Court dismissed the Adversary Proceeding for two reasons: (1) the 

Plaintiffs’ failure to appear at the Status Conference, and (2) the Plaintiffs’ failure to 

serve the Summons, Complaint, Amended Complaint, or Status Conference Order on 

the Defendants. The Plaintiffs argue that the Court should vacate the dismissal order 

and reinstate the case because they (1) failed to appear due to a calendaring error, 

and (2) believed they did not have to serve the Defendants because they are the 

Debtor and its board of directors.

Attorneys frequently seek relief for excusable neglect based on calendaring 

errors. Though some courts have found that scheduling mistakes can constitute 

excusable neglect, others have determined they do not. See id. (collecting cases). The 

Court need not determine at this time whether the Plaintiffs’ calendaring mistake 

constitutes excusable neglect because, even if it does, the Plaintiffs’ additional 

failures do not satisfy the excusable neglect standard.

The Plaintiffs failed to timely serve the Summons, Complaint, and Order by 

April 18, 2022. Though inadvisable, this mistake was not fatal because the Federal 

and Local Rules both provide the Plaintiffs with a way to fix their mistake—request 

an alias summons. But the Plaintiffs did not do that either. Then, they amended their 

complaint and failed to serve that on the Defendants as well. Of course, even if they 

had, the Defendants would not have been on notice of any applicable deadlines 

because, by the time the Amended Complaint was filed on May 13, 2022, there was 

no alias summons providing new deadlines.

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According to the Plaintiffs themselves, the reason for their failure to follow the 

basic rules of litigating an adversary proceeding in bankruptcy court was their 

Counsel’s ignorance of the necessity to serve the Debtor and its Board Members in 

the Adversary Proceeding. Yet, the Plaintiffs provide no support for why they believed 

that the Debtor and its Board Members were not entitled to the same due process

rights as any other defendant. Of course, there is no support for such a proposition. 

See Fed. R. Bankr. P. 7004(b)(9) (explaining how to properly serve a debtor-defendant 

in an adversary proceeding). 

While Plaintiffs’ failures in this case result from neglect, that neglect is 

inexcusable. To qualify to practice before this Court, attorneys must, among other 

things, “read and remain familiar with [the Local Rules], administrative orders, the 

Federal Rules of Bankruptcy Procedure, the Federal Rules of Civil Procedure, the 

Federal Rules of Evidence, The Florida Bar’s Rules of Professional Conduct, and the 

Bankruptcy Code.” Bankr. S.D. Fla. Local R. 2090-1(A)(2) (emphasis added). If the 

mistakes related to some ambiguous rule, Counsel’s error might be excusable. But 

here, where the matter at issue is simple and fundamental to due process of law, such 

ignorance cannot be countenanced. Accordingly, the Court ORDERS that the Motion 

to Vacate (Doc. 15) is DENIED.

# # #

Copies to all parties in interest.

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