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E.D.N.C.: In re Port City Contracting Services, Inc.- Discovery Appeal Dismissed as Interlocutory

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By Ed Boltz, 2 July, 2025

Summary:

Pro se litigant Robert Paul Sharpe appealed two discovery-related denials from Bankruptcy Judge David M. Warren in the Chapter 11 proceedings of Port City Contracting Services, Inc. Specifically, Sharpe sought (1) to compel witness attendance at a hearing and (2) a judgment on the pleadings regarding that same motion, both of which were denied as procedurally improper.

Judge Warren correctly pointed out that Federal Rule 45, not a motion to compel, governs witness subpoenas, and that Rule 12(c)—which applies to pleadings, not discovery—was inapplicable. Sharpe then attempted to appeal, not only those denials but also "any subsequent opinions or orders forthcoming."

District Judge Richard E. Myers II dismissed the appeal for lack of jurisdiction. Because the denial was an interlocutory discovery ruling, it was not a final order appealable under 28 U.S.C. § 158(a)(1). Moreover, Sharpe failed to seek leave for an interlocutory appeal under § 158(a)(3), and even if he had, the court found no exceptional circumstances to justify such a departure from the final judgment rule.

The court also denied Sharpe’s various procedural motions and declined to entertain his effort to preemptively appeal future orders. While stopping short of imposing sanctions due to Sharpe’s pro se status, the court warned that Rule 11 applies to all litigants and left future disciplinary matters to the discretion of the bankruptcy court.

Commentary:
This case serves as a textbook example of why pro se parties—especially those attempting aggressive litigation tactics—must carefully adhere to the procedural rules of both the Bankruptcy Code and the Federal Rules of Civil Procedure.

First, Judge Warren's ruling was entirely routine: discovery matters are not resolved through Rule 12 motions, and if a party seeks attendance of witnesses, Rule 45 provides the proper tool. Attempting to shortcut that process with a motion to compel and then seeking judgment on those pleadings reflects a fundamental misunderstanding of procedure.

Second, the appeal itself was doomed from the start. Bankruptcy discovery orders are well-settled as interlocutory, and without leave under § 158(a)(3)—which Sharpe failed even to request—the district court lacked jurisdiction. The court rightly invoked Bullard v. Blue Hills Bank and Bestwall, confirming that finality in bankruptcy turns on whether a discrete proceeding is concluded, not just whether a motion is denied.

Finally, Sharpe’s attempt to prospectively appeal future, as-yet-unissued orders—and to do so while referencing irrelevant issues—was flagged as vexatious. The district court, while restrained in withholding sanctions, reminded Sharpe that Rule 11 binds even non-lawyers. Given the “contentious” litigation history noted by the court, this was a diplomatic but firm signal that further abuse could merit sanctions.

Interlocutory appeals from bankruptcy court orders,  which are unfortunately often necessary following the denial of confirmation under Bullard v. Blue Hills,  are strictly limited and rarely granted. Under 28 U.S.C. § 158(a)(3), a party may seek leave to appeal an interlocutory order, but success requires clearing a high bar:

To even be considered, the movant must timely file a motion for leave to appeal under Federal Rule of Bankruptcy Procedure 8004(a)—failure to do so is jurisdictionally fatal, as seen in In re Port City Contracting Services, Inc.

Even if procedurally proper, the court applies the strict three-part test akin to 28 U.S.C. § 1292(b):

  1. Controlling Question of Law â€“ The issue must involve a pure legal question that could substantially affect the outcome of the case.

  2. Substantial Ground for Difference of Opinion â€“ There must be legitimate, competing interpretations of the law—not just disagreement by the appellant.

  3. Material Advancement of Litigation â€“ Immediate resolution of the issue must materially speed up the proceedings, not merely settle a tangential matter.

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To read a copy of the transcript, please see:

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