Of the District of Maine, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-2275

IN RE: SIMPLY MEDIA, INC.,

Debtor.

__________

BRADLEY C. REIFLER,

Plaintiff,

STEVEN M. NOTINGER, CHAPTER 7 TRUSTEE,

Plaintiff, Appellee,

v.

CHRISTINA BROWN, a/k/a CHRISTINA RAGO, Individually and

in her capacity as Trustee of First Marcus Trust,

Defendant, Appellant.

__________

ELIZABETH BROWN; MARIA SCHULMAN; DUDLEY C. GOAR;

MIDDLESEX SAVINGS BANK; ANGELIKA THUMM; KATHERINE SAN FILIPPO,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

 Boudin and Lipez, Circuit Judges,

and Singal, District Judge. *
James V. Tabner for appellant.

Todd B. Gordon with whom Stephen F. Gordon and Gordon Haley

LLP were on brief for appellee.

May 15, 2009
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Per Curiam. In the district court, Steven Notinger, the

trustee in bankruptcy of David Deaver Brown and an affiliated

corporate debtor called Simply Media, Inc., sought to recover for

the estate allegedly fraudulent payments made by Simply Media to or

for Christina Brown--David Brown's wife--individually and in her

role as trustee of the First Marcus Trust. In addition, Notinger

sought damages for Christina Brown's participation in a civil

conspiracy.

At trial, there was evidence from Notinger and his

witnesses that David and Christina Brown had formed Simply Media,

a company making (or purporting to make) CDs, and had gotten

friends to invest in it based on fictitious financial statements

and a compelling sales pitch; that the Browns used the invested

funds to pay for their personal expenses over several years

including the mortgage on their home, personal dry cleaning bills,

credit card bills, rent on their daughters' apartments, medical

bills, vacation and school tuition; and that when the funds were

exhausted, Simply Media and David Brown filed for bankruptcy. 

Based on evidence received at a pre-trial hearing and

Christina Brown's trial testimony when called by Notinger, the

district judge sanctioned Christina Brown for deliberately

destroying records by precluding her from testifying as to why the

diverted corporate funds constituted legitimate business expenses.

A jury returned a verdict against Christina Brown of $1,103,508.60
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on the fraudulent transfer claim and $2,968,071 (later reduced to

$1,648,000) on the civil conspiracy claim. Christina Brown now

appeals, raising a variety of arguments of which three are

prominent and will serve as samples: 

•that positions taken by Notinger in

other litigation against former board members

of Simply Media, after the jury returned a

verdict in this case, were inconsistent with

his positions in this litigation;

•that the New Hampshire Business

Corporation Act, N.H. Rev. Stat. Ann. § 293-

A:1.01 et seq. (2009), authorized the

payments, which could be regarded as serving

business ends; and 

 

•that the spoliation sanction for

deliberate destruction of evidence imposed by

the district court was error.

We do not pass definitively on these or other arguments,

because Brown's brief does not properly present them. The

governing rule requires that an appellant's brief contain "a

statement of facts relevant to the issues submitted for review with

appropriate references to the record" and an argument "with

citations to the authorities and parts of the record on which the

appellant relies." Fed. R. App. P. 28(a)(7), (9). Brown's brief

fails to do either.

Although claiming that there are "18 issues of material

facts" that warrant revisiting the judgment, Brown's opening brief

does not once cite the trial transcript; and the separate statement

of facts in the brief is one paragraph long, with other factual
The belated documentation in the reply brief reveals that the 1

claim amounts to this: that Notinger's position at trial here was

that Simply Media was virtually a sham company, while in subsequent

litigation against the directors of Simply Media, Notinger claimed

damages against them for breach of fiduciary duty, alleging that

Simply Media had claimed large assets, which "had disappeared

without a trace by the time Simply Media filed its bankruptcy

petition." 

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assertions merely scattered throughout the argument section. The

brief is lengthy but much of the argument is very hard to follow.

Although many of the arguments inherently depend on legal

propositions, the brief cites only two cases. 

Brown initially indicated on her transcript order form

that no transcript was necessary to our resolution of this case.

After the briefing schedule was set--well after the ten day limit

set by Fed. R. App. P. 10(b)--Brown's counsel ordered a transcript

while continuing to claim that none was necessary. Because of the

delay in ordering the transcript, Brown's brief was due before the

transcript was filed but seemingly Brown made no effort to obtain

an extension so as to supply a brief with proper citations.

Neither does Brown's brief supply the information that

would be necessary to evaluate the claims. Thus, while Notinger's

position in this case is alleged to be inconsistent with his

position in other litigation, the specific statements in each forum

are neither quoted nor documented in Brown's opening brief, and in

the reply brief it becomes clear that the supposed inconsistency is

imaginary. Nor is there any case law offered to show that 1
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supposed inconsistencies are automatically a basis for setting

aside a judgment on appeal in the absence of any post-judgment

effort to do so in the district court. 

Brown's argument under the New Hampshire Business

Corporation Act seems to be that the types of expenses that Simply

Media paid on her behalf were permitted as valid expenses necessary

to locate an office, maintain the health of officers, and so on.

No authority is offered to suggest that the statute allows a

corporation to pay personal expenses of the type and on the scale

that the evidence indicated in this case. In Brown's reply brief,

it is argued that Delaware law applied--an argument waived by

failing to make it in the opening brief. VanHaaren v. State Farm

Mut. Auto. Ins. Co., 989 F.2d 1, 7 n.6 (1st Cir. 1993).

As to the spoliation sanction, Brown says that it was

unjustified because there was "no evidence introduced of any single

document destroyed or any required document not available

elsewhere." The brief does not address or explain the extensive

evidence, presented at the pre-trial hearing and through Brown's

own testimony, supporting the district court finding that "the

Browns had deliberately and systematically destroyed nearly every

relevant corporate document they ever received or generated."

Given the deficiencies of the brief and violations of

applicable rules, we dismiss this appeal, as precedent permits,

Reyes-Garcia v. Rodriguez & Del Valle, Inc., 82 F.3d 11, 15-16 (1st
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Cir. 1996), and the inadequacies of the brief require. In

addition, we direct Brown's counsel to show cause by written

response within 14 days as to why the court should not order

payment by him personally of attorney's fees and double costs for

needlessly consuming the time of the court and opposing counsel

with a brief that renders the appeal frivolous. See Fed. R. App.

P. 38; 1st Cir. R. 38. 

It is so ordered.