Free Order - District Court of Delaware - Delaware

Case 1:04-cv-00146-JJF Document 31 Filed O3/31/2005 Page 1 013
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: :
: Chapter ll
THE IT GROUP, INC., et al., :
: Bankruptcy Case N0. O2—lOll8—MFW
Debtors. :
JOHN ACCARDI, et al., Z
Appellants, ;
v. ; Civil Action No. 04-146-JJF
: CONSOLIDATED
IT CORPORATION, et al., :
Appellees. E
ROCHELLE BOOKSPAN, ;
Appellant, ;
v. ;
THE IT GROUP, INC, et al., Z
Appellees. E
MEMORANDUM ORDER
Presently before the Court is a request by Appellant,
Rochelle Bookspan, to amend her Opening Brief and the relief
requested on appeal to include reversal of the Bankruptcy Court’s
dismissal of her second amended counterclaims and reversal of the
Final Order of the Bankruptcy Court granting judgment to the
Appellees’ vis—a—vis their complaint for declaratory relief.
(D.I. I6, n.6). Appellant makes her request to amend in a
footnote in her Motion To Consolidate.
The Debtors have filed a response to the request to amend i
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contending that the request is an improper attempt to add new
issues to the appeal. The Debtors contend that any new issues
have been waived pursuant to Rule 8006 of the Federal Rules of
Bankruptcy Procedure, which gives an appellant ten (10) days
after filing a notice of appeal to file a statement of the issues
to be presented on appeal. If the issues are not waived, the
Debtors request the opportunity to file a Supplemental Answer
Brief to address the issues.
If an issue is not included in the designation of the issues
presented on appeal, the issue is waived. Interface Group-
Nevada, Inc. v. Trans World Airlines, Inc., 145 F.3d 124, 132-133
(3d Cir. 1998). Pursuant to Federal Rule of Bankruptcy Procedure
8006, Appellant had ten days after filing her notice of appeal to
file a statement of the issues to be presented in that appeal.
Pursuant to Federal Rule of Bankruptcy Procedure 8010, the
Appellant’s brief is to contain an argument section discussing
all the issues raised on appeal.
It appears to the Court based on a review of Appellant’s
Opening Brief and the designation of issues raised on appeal,
that Appellant did not raise the issues she now raises in
footnote 6 of her Motion To Consolidate. Appellant suggests that
her counterclaims are substantially the same as the claims in the
complaint in the related action in Accardi, et al. v. IT Corp.,
et al., Adv. No. 02-05486 (the “Accardi appeal"). To the extent
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the issues in Appellant's counterclaim are the same as the issues
in the Accardi complaint, the Court will deem Appellant's appeal
to be amended to include a review of the dismissal of her
counterclaims. However, to the extent that her counterclaims
differ from the issues raised in Accardi or otherwise present new
issues, they have not been briefed or designated on appeal, and
therefore, the Court concludes that they have been waived.
NOW THEREFORE, IT IS HEREBY ORDERED thisiEg_Z day of March
2005, that the request to amend her opening brief and to add new
issues on appeal filed by Rochelle Bookspan contained in her
Motion To Consolidate (D.I. 16, n.6) is GRANTED to the extent
that Bookspan's counterclaims are identical to the issues raised
in the Accardi appeal and DENIED in all other respects.
ST TE ISTRICT JUDGE
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