IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PNC BANK, NATIONAL )

ASSOCIATION, )

 )

Plaintiff, )

)

v. ) MISC. ACTION 13-0009-WS-M

 )

OM PROPERTIES, LLC, et al., )

 )

Defendants. )

ORDER

This matter comes before the Court on the receiver’s “Motion (1) for Approval of Private 

Sale of Assets Held by Receiver and (2) for Order Related to Personal Property that is Not 

Receivership Property” (doc. 21) and the receiver’s sealed “Motion to File Purchase Agreement 

under Seal” (doc. 22).

On July 22, 2013, the undersigned entered an Order (doc. 5) granting plaintiff PNC 

Bank’s Motion for Appointment of Post-Judgment Receiver. The factual grounds for 

appointment of a receiver included the $2.4 million judgment PNC had obtained against 

defendants in a Florida state court for breach of promissory notes and guaranties, as well as 

PNC’s representation that an offer of sale for certain collateral real property owned by 

defendants was set to expire on August 15, 2013. On the basis of these representations – and 

after providing defendants with notice and a reasonable opportunity to be heard, of which they 

did not avail themselves – the Court entered an order appointing Metcalfe & Company, Inc. as 

receiver under specified terms and conditions. Among the powers granted to Metcalfe pursuant 

to the July 22 Order was authority, “subject to approval by the Court, [to] conduct a receiver’s 

sale of all or a portion of the Receivership Property, free and clear of liens, claims and other 

encumbrances, under such terms and conditions as PNC may, in its sole discretion, deem 

appropriate or desirable.” (Doc. 5, at 6.)

Metcalfe has now filed a series of Motions seeking to exercise this authority with respect 

to certain real property known as Unit 215, Holiday Isle, a Condominium on Dauphin Island (the 

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“Property”). In these filings, Metcalfe explains that it has negotiated and entered into a Purchase 

Agreement (the “Agreement”) for the Property. In light of these developments, Metcalfe 

requests the following relief: (i) judicial approval of the Agreement, (ii) authorization for 

Metcalfe to sell the Property in accordance with that Agreement, (iii) ruling that the sale be free 

and clear of liens, claims and encumbrances (which would then be transferred to the proceeds of 

the sale), and (iv) judicial directive that defendants have 10 days in which to remove contents 

(excluding built-in appliances) from the Property, after which Metcalfe may donate such 

abandoned contents to a charitable organization in its discretion. In support of these requests, 

Metcalfe’s Associate Broker and Vice President, Adam J. Metcalfe, avers that, in his view, the 

purchase price in the Agreement “represents a fair and reasonable price that can be achieved 

based on market conditions,” and that other than PNC Bank, he is aware of no creditors that have 

an interest in the Property. (Doc. 21, Exh. 1, ¶¶ 4, 6.) Adam Metcalfe further states that the 

Property contains unspecified “non-built-in appliances” and “furnishings” that are outside the 

scope of the Agreement, and that would need to be disposed prior to closing. (Id., ¶ 8.)

Contemporaneously with its Motion for Approval of Private Sale, Metcalfe filed under 

seal a Motion to File Purchase Agreement under Seal (doc. 22), in which Metcalfe expresses 

concern that if the proposed sale were to fall through, Metcalfe’s efforts to sell the Property for a 

higher price would be jeopardized if the public had access to the Agreement’s terms.1 As an 

initial matter, the Motion to File Purchase Agreement under Seal should not itself have been filed 

under seal, given the dearth of sensitive information contained in the Motion, the absence of 

confidential exhibits, and the fundamental principle that “[a]ny step that withdraws an element of 

the judicial process from public view ... requires rigorous justification.” Perez-Guerrero v. U.S. 

Atty. Gen., 717 F.3d 1224, 1235 (11th Cir. 2013) (citation omitted). Metcalfe has not shown 

good cause (or “rigorous justification”) for sealing the Motion itself; therefore, the Clerk of 

Court is directed to unseal the Motion to File Purchase Agreement under Seal (doc. 22).

 1 In concrete terms, suppose the Agreement provided for a purchase price of $X. 

Suppose, too, that this deal never closes, leaving Metcalfe searching for another buyer for the 

Property. If Metcalfe were to locate an interested party and conduct negotiations for the sale of 

the Property, any effort by Metcalfe to fix a purchase price of, say, $X+1, would be hampered if 

the would-be purchaser knew that Metcalfe had previously been willing to sell the Property for 

just $X to another buyer.

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Nonetheless, with respect to the underlying Purchase Agreement, the Court finds that 

Metcalfe has made an adequate showing of good cause to justify sealing the Agreement, at least 

temporarily. On that basis, the Motion to File Purchase Agreement under Seal is granted in 

part, as follows: Metcalfe is ordered to file a copy of the Agreement under seal on or before 

January 24, 2014, and to furnish a copy of the Agreement to defendants. That Agreement will 

remain under seal, subject to the proviso that if the contemplated sale of the Property to Glenna 

Girdner Housing Trust closes, as anticipated, the Clerk of Court will then unseal the Agreement 

to vindicate the public’s right of access to court proceedings in the absence of extraordinary 

countervailing litigant concerns that might justify sealing a court filing.2

With respect to the Motion for Approval of Private Sale and for Order Related to 

Personal Property (doc. 21), the Court hereby enters the following briefing schedule:

1. Metcalfe is ordered to file a written evidentiary submission supporting its request 

for approval of the Agreement (including, without limitation, the reasonableness 

of the negotiated sale price and the results of Metcalfe’s good-faith investigation 

into the presence or absence of other liens, claims and encumbrances to the 

Property) on or before January 24, 2014;

3

2. Metcalf is further ordered to serve a copy of its written evidentiary submission 

on defendants, in a prompt and timely fashion;

3. Defendants are ordered, on or before February 7, 2014, to file any objections to 

(i) the contemplated sale of the Property as specified in the Agreement, or (ii) the 

proposed disposition of any contents of the Property that defendants do not 

remove within a 10-day period. Defendants’ submission must set forth with 

 2 See generally Romero v. Drummond Co., 480 F.3d 1234, 1245-46 (11th Cir. 2007) 

(explaining that “[m]aterial filed in connection with any substantive pretrial motion ... is subject 

to the common law right of access,” which “may be overcome by a showing of good cause”); 

Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) (“The 

common-law right of access to judicial proceedings ... is instrumental in securing the integrity of 

the process” and unquestionably “includes the right to inspect and copy public records and 

documents.”).

3 All portions of this evidentiary submission which recite the agreed-upon sale 

price may be filed under seal for the reasons stated supra, provided, however, that they will be 

unsealed after the closing occurs.

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specificity the factual and legal basis for any such objections. Defendants are 

cautioned that this is their one and only opportunity to be heard as to the 

proposed sale, and that failure to respond by the specified deadline will be 

construed as a waiver of any objections they may have;

4. If a hearing is deemed necessary, one will be set promptly thereafter; and

5. The Court will rule on the Motion for Approval of Private Sale and for Order 

Related to Personal Property in a timely manner after briefing is concluded.

DONE and ORDERED this 17th day of January, 2014.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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