Henke v. Tribune Media Co. (In re Tribune Media Co.)

626 B.R. 209

IN RE: TRIBUNE MEDIA COMPANY, et al., Debtors.

Robert Henke, Appellant,

v.Tribune Media Company, Appellees.

Bankruptcy Case No. 08-13141 (BLS)

Civil Action No. 20-383-RGA

United States District Court, D. Delaware.

Filed March 22, 2021

Amy C. Andrews, Matthew G. Martinez, Sidley Austin LLP, Chigaco, IL, Norman L. Pernick, Patrick J. Reilley, J. Kate Stickles, Cole Schotz P.C., Wilmington, DE, Nathan Siegel, Davis Wright Tremaine LLP, Washington, DC, for Debtors.

MEMORANDUM

Richard G. Andrews, United States District Judge

Before me is Robert Henke's appeal from a decision of the bankruptcy court denying his claims in a chapter 11 bankruptcy proceeding of the Tribune Media Company and its affiliated company, the Baltimore Sun. The claims are based on allegations that the Sun, a newspaper, defamed him in an article it published on October 7, 2007. (D.I. 22 at JA00096-JA00106). There are also claims that the Sun had made various misrepresentations to him.

The bankruptcy court held an evidentiary hearing, after which it wrote a lengthy opinion explaining why it was sustaining the Sun's objections to the claims. On appeal, Henke, proceeding pro se as he has done throughout the bankruptcy court proceedings, does not argue that the bankruptcy court committed any error of law in its analysis. Further, while he disputes various factual statements made in the court's opinion, he does not argue that the decision should be reversed because of any clearly erroneous factual findings. Rather, the issue he raises on appeal is a claim that the court denied him due process in its procedures for resolving the claims.

I have jurisdiction over the appeal because sustaining the Sun's objections to the claims was a final order, and Henke timely filed an appeal.

Since the appeal concerns the process, I now describe what I think is the relevant procedural history.

Henke timely filed claims in the bankruptcy against the Sun in 2009, one of which he amended in 2012. In re Tribune Media Co. , 616 B.R. 475, 479 nn. 4 & 5 (Bankr. D. Del. 2020). The Sun objected. Id . at 479 n.6. The bankruptcy court held a hearing in 2012. Id. at 479. In 2016, it denied the claims. In re Tribune Media Co. , 552 B.R. 282 (Bankr. D. Del. 2016). Henke appealed. I vacated the decision on the basis that the court denied the claims for lack of proof, but there had been no notice that the hearing was to be an evidentiary hearing. Henke v. Tribune Media Co. , 2019 WL 643734, at *4-6 (D. Del. Feb. 15, 2019).

On remand, the bankruptcy court had multiple pre-hearing conferences with the parties. The Court held telephonic conferences on April 16, 2019 (Bkr. No. 08-13141, D.I. 14519),¹ May 23, 2019 (D.I. 23 at JA00970-JA1001), June 17, 2019 (Bkr. No. 08-13141, D.I. 14548 (sign-in sheet)), and June 27, 2019 (D.I. 23 at JA01002-JA01027).

At the April 16^th conference, the parties discussed the schedule including the length of a discovery period; Judge Carey denied Henke's request for six months of preparation. (D.I. 24 at 30-31; D.I. 31 at 6-7). The parties on May 2^nd submitted a stipulation as to a discovery schedule with a hearing date of June 20, 2019. (Bkr. No. 08-13141, D.I. 14523; see also D.I. 23 at JA00978-JA00979).

Until May 13, 2019, the case had been handled by Judge Carey, but, due to his imminent retirement, the case was then reassigned to Judge Shannon. Tribune , 616 B.R. at 480 n.9 (see D.I. 23 at JA00973-JA00974).

On May 14^th, Henke sought to extend the stipulated discovery deadlines and postpone the hearing. (Bkr. No. 08-13431, D.I. 14526 at 2, 6). Henke had timely propounded discovery. (D.I. 23 at JA00982). The request to postpone the June 20^th hearing date was denied during the May 23^rd conference. (D.I. 23 at JA00984-JA00985). The bankruptcy court stated it would have another conference on June 17^th wherein the schedule could be reconsidered if there was basis for doing so. (D.I. 23 at JA00986-JA00989). The bankruptcy court explained to Henke what would be expected at the hearing—he should "bring any documents" and "other witnesses" and he could ask questions of the Sun's witnesses. (D.I. 23 at JA00991, JA00999-JA01000; see also JA01012-JA01013). The bankruptcy court stated that Henke could submit a pre-hearing brief "if [he] want[ed] to do that." (D.I. 23 at JA00993). The bankruptcy court indicated that it had all day available for the hearing. (D.I. 23 at JA00994-JA00995).

The June 17^th conference is not transcribed and there does not appear to be an audio recording of it on the docket. At that conference, or sometime near that conference, it appears the hearing was rescheduled from June 20^th to July 2^nd.

At the June 27^th conference, Henke advised that he had no witnesses. (D.I. 23 at JA01012). The bankruptcy court made clear that despite the flurry of last-minute activity, it would entertain a request for a continuance based on not having "a fair opportunity to prepare." (D.I. 23 at JA01015). No such request was made by either side. The bankruptcy court did, however, grant Henke more time, upon his request, on an issue that would not impact the hearing date. (D.I. 23 at JA01019-JA01020).

At the hearing, on July 2, 2019, the Sun called one witness, Gadi Dechter, the journalist who wrote the 2007 article. (D.I. 23 at JA01059). Henke declined to cross-examine him. (Id . at JA01122). Henke did not call any witnesses. Henke submitted a substantial amount of documentary evidence, which the bankruptcy court admitted into evidence. The court held closing argument on August 5, 2019. (D.I. 23 at JA01235).

The bankruptcy court issued a lengthy opinion on March 3, 2020, in which it sustained the objections to the claims. Tribune , 616 B.R. 475. Henke filed a notice of appeal dated March 11, 2020, docketed on March 16, 2021. (D.I. 1).

The parties have fully briefed the appeal. (D.I. 24, 31, 35).² I do not think oral argument would assist in the resolution of the issues on appeal, and therefore I have not had oral argument.

The essence of due process is notice and an opportunity to be heard. Henke's due process arguments on this appeal are of a different nature than the due process argument raised in his prior appeal. There he claimed lack of notice. He does not now claim lack of notice and he does not claim that he did not have an evidentiary hearing. Instead, he claims a denial of due process for myriad reasons: (1) Judge Shannon was biased; (2) he ran out of financial resources while prosecuting his claim; (3) Judge Shannon did not review his evidence; (4) the evidentiary hearing was defective; and (5) there was deceit during the evidentiary hearing. (D.I. 35 at 4 ("Statement of issues")).³

I review his claims of denial of procedural due process de novo . Anthony v. Interform Corp. , 96 F.3d 692, 693-94 (3d Cir. 1996).

I do not think there is any merit to any of the due process issues. Before I briefly explain why, though, it is necessary to explain how the current procedural posture impacts Henke's arguments. An appeal is not a "do-over." Thus, Judge Shannon's adjudging the only live witness—the author of the article—at the hearing to be credible and sincere was his decision to make. Henke's decisions not to cross-examine the journalist, and not to call any witnesses himself, were judgment calls; they cannot be undone. Henke's briefs contain numerous statements about what he recalls about his interactions with the journalist, his state of mind, and related speculation that are unsupported by any citations to the record. (E.g. , D.I. 24 at 40, 45, 50, 52, 53, 55; D.I. 35 at 17, 18, 19, 20, 23, 25, 28, 33, 36, 37, 39). And they do not sound like anything I would find in the evidentiary record even if I scoured the record looking for them. Further, even on the core due process issues raised, for the most part I do not see that they have been preserved.

The criticism of Judge Shannon as being biased appears to be based on the following assertions. One, Judge Shannon "plagiarized" Judge Carey's opinion. Two, Judge Shannon and Judge Carey worked together and might have been close friends. Three, Judge Shannon should not have found the journalist credible.⁴

First, I do not see any evidence that Judge Shannon "plagiarized" Judge Carey. The fact that the opinions have similarities should not be surprising. Among other things, when I vacated Judge Carey's decision, I offered no opinion on his defamation and misrepresentation analysis. The Sun, not surprisingly, referred Judge Shannon to Judge Carey's opinion. (See, e.g. , D.I. 23 at JA01039, JA01046-JA01047, JA01124, JA01128 ("Judge Carey's analysis was spot on."), JA01144, JA01161). There was no reason Judge Shannon could not read and consider Judge Carey's analysis. Indeed, he referred to reading Judge Carey's opinion while asking questions of the Sun's lawyers and implied as much while asking Henke questions. (D.I. 23 at JA01041, JA01057). To the extent he agreed with Judge Carey's analysis, he was under no obligation to cite Judge Carey's opinion.⁵ Henke's support for his "plagiarism" argument is basically what he calls "idea plagiarism." He disavows any argument that Judge Shannon literally copied Judge Carey's opinion,⁶ and a comparison of the two opinions shows that he did not.⁷ Judge Carey's opinion relied essentially on the Amended Complaint and the Sun article. Judge Shannon relied on the evidence in the record and the Sun article. Judge Shannon sometimes cited different law. To the extent there is such a thing as "idea plagiarism," I do not think it has much relevance to the law. The law is based upon precedent. At base, precedent is simply principles that have been accepted in the past. There are very few issues that cannot be resolved based on the application of past principles to the present circumstances. And when the present circumstances are not much different than the past circumstances, application of the law to the facts is going to sound similar.

The other arguments about bias can be dealt with...