Federal Criminal Law Opinions

GEORGE PORTER, Jr. v. BILL McCOLLUM, ATTORNEY GENERAL OF FLORIDA, et al. U.S. Supreme Court. Case No. 08-10537. Decided November 30, 2009. On Petition for Writ of Certiorari to the U.S. Court of Appeals for the Eleventh Circuit.

Per Curiam.

Petitioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man. His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.

In this federal postconviction proceeding, the District Court held that Porter’s lawyer’s failure to adduce that evidence violated his Sixth Amendment right to counsel and granted his application for a writ of habeas corpus. The Court of Appeals for the Eleventh Circuit reversed, on the ground that the Florida Supreme Court’s determination that Porter was not prejudiced by any deficient performance by his counsel was a reasonable application of Strickland v. Washington, 466 U.S. 668 (1984). Like the District Court, we are persuaded that it was objectively unreasonable to conclude there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that Porter’s counsel neither uncovered nor presented. We therefore grant the petition for certiorari in part and reverse the judgment of the Court of Appeals.1

I
Porter was convicted of two counts of first-degree murder for the shooting of his former girlfriend, Evelyn Williams, and her boyfriend Walter Burrows. He was sentenced to death on the first count but not the second.

In July 1986, as his relationship with Williams was ending, Porter threatened to kill her and then left town. When he returned to Florida three months later, he attempted to see Williams but her mother told him that Williams did not want to see him. He drove past Williams’ house each of the two days prior to the shooting, and the night before the murder he visited Williams, who called the police. Porter then went to two cocktail lounges and spent the night with a friend, who testified Porter was quite drunk by 11 p.m. Early the next morning, Porter shot Williams in her house. Burrows struggled with Porter and forced him outside where Porter shot him.

Porter represented himself, with standby counsel, for most of the pretrial proceedings and during the beginning of his trial. Near the completion of the State’s case in chief, Porter pleaded guilty. He thereafter changed his mind about representing himself, and his standby counsel was appointed as his counsel for the penalty phase. During the penalty phase, the State attempted to prove four aggravating factors: Porter had been “previously convicted” of another violent felony (i.e., in Williams’ case, killing Burrows, and in his case, killing Williams);2 the murder was committed during a burglary; the murder was committed in a cold, calculated, and premeditated manner; and the murder was especially heinous, atrocious, or cruel. The defense put on only one witness, Porter’s ex-wife, and read an excerpt from a deposition. The sum total of the mitigating evidence was inconsistent testimony about Porter’s behavior when intoxicated and testimony that Porter had a good relationship with his son. Although his lawyer told the jury that Porter “has other handicaps that weren’t apparent during the trial” and Porter was not “mentally healthy,” he did not put on any evidence related to Porter’s mental health. 3 Tr. 477-478 (Jan. 22, 1988).

The jury recommended the death sentence for both murders. The trial court found that the State had proved all four aggravating circumstances for the murder of Williams but that only the first two were established with respect to Burrows’ murder. The trial court found no mitigating circumstances and imposed a death sentence for Williams’ murder only. On direct appeal, the Florida Supreme Court affirmed the sentence over the dissent of two justices, but struck the heinous, atrocious, or cruel aggravating factor. Porter v. State, 564 So. 2d 1060 (1990) (per curiam). The court found the State had not carried its burden on that factor because the “record is consistent with the hypothesis that Porter’s was a crime of passion, not a crime that was meant to be deliberately and extraordinarily painful.” Id., at 1063 (emphasis deleted). The two dissenting justices would have reversed the penalty because the evidence of drunkenness, “combined with evidence of Porter’s emotionally charged, desperate, frustrated desire to meet with his former lover, is sufficient to render the death penalty disproportional punishment in this instance.” Id., at 1065-1066 (Barkett, J., concurring in part and dissenting in part).

In 1995, Porter filed a petition for postconviction relief in state court, claiming his penalty-phase counsel failed to investigate and present mitigating evidence. The court conducted a 2-day evidentiary hearing, during which Porter presented extensive mitigating evidence, all of which was apparently unknown to his penalty-phase counsel. Unlike the evidence presented during Porter’s penalty hearing, which left the jury knowing hardly anything about him other than the facts of his crimes, the new evidence described his abusive childhood, his heroic military service and the trauma he suffered because of it, his long-term substance abuse, and his impaired mental health and mental capacity.

The depositions of his brother and sister described the abuse Porter suffered as a child. Porter routinely witnessed his father beat his mother, one time so severely that she had to go to the hospital and lost a child. Porter’s father was violent every weekend, and by his siblings’ account, Porter was his father’s favorite target, particularly when Porter tried to protect his mother. On one occasion, Porter’s father shot at him for coming home late, but missed and just beat Porter instead. According to his brother, Porter attended classes for slow learners and left school when he was 12 or 13.

To escape his horrible family life, Porter enlisted in the Army at age 17 and fought in the Korean War. His company commander, Lieutenant Colonel Sherman Pratt, testified at Porter’s postconviction hearing. Porter was with the 2d Division, which had advanced above the 38th parallel to Kunu-ri when it was attacked by Chinese forces. Porter suffered a gunshot wound to the leg during the advance but was with the unit for the battle at Kunu-ri. While the Eighth Army was withdrawing, the 2d Division was ordered to hold off the Chinese advance, enabling the bulk of the Eighth Army to live to fight another day. As Colonel Pratt described it, the unit “went into position there in bitter cold night, terribly worn out, terribly weary, almost like zombies because we had been in constant — for five days we had been in constant contact with the enemy fighting our way to the rear, little or no sleep, little or no food, literally as I say zombies.” 1 Tr. 138 (Jan. 4, 1996). The next morning, the unit engaged in a “fierce hand-to-hand fight with the Chinese” and later that day received permission to withdraw, making Porter’s regiment the last unit of the Eighth Army to withdraw. Id., at 139-140.

Less than three months later, Porter fought in a second battle, at Chip’yong-ni. His regiment was cut off from the rest of the Eighth Army and defended itself for two days and two nights under constant fire. After the enemy broke through the perimeter and overtook defensive positions on high ground, Porter’s company was charged with retaking those positions. In the charge up the hill, the soldiers “were under direct open fire of the enemy forces on top of the hill. They immediately came under mortar, artillery, machine gun, and every other kind of fire you can imagine and they were just dropping like flies as they went along.” Id., at 150. Porter’s company lost all three of its platoon sergeants, and almost all of the officers were wounded. Porter was again wounded and his company sustained the heaviest losses of any troops in the battle, with more than 50% casualties. Colonel Pratt testified that these battles were “very trying, horrifying experiences,” particularly for Porter’s company at Chip’yong-ni. Id., at 152. Porter’s unit was awarded the Presidential Unit Citation for the engagement at Chip’yong-ni, and Porter individually received two Purple Hearts and the Combat Infantryman Badge, along with other decorations.

Colonel Pratt testified that Porter went absent without leave (AWOL) for two periods while in Korea. He explained that this was not uncommon, as soldiers sometimes became disoriented and separated from the unit, and that the commander had decided not to impose any punishment for the absences. In Colonel Pratt’s experience, an “awful lot of [veterans] come back nervous wrecks. Our [veterans'] hospitals today are filled with people mentally trying to survive the perils and hardships [of] . . . the Korean War,” particularly those who fought in the battles he described. Id., at 153.

When Porter returned to the United States, he went AWOL for an extended period of time.3 He was sentenced to six months’ imprisonment for that infraction, but he received an honorable discharge. After his discharge, he suffered dreadful nightmares and would attempt to climb his bedroom walls with knives at night.4 Porter’s family eventually removed all of the knives from the house. According to Porter’s brother, Porter developed a serious drinking problem and began drinking so heavily that he would get into fights and not remember them at all.

In addition to this testimony regarding his life history, Porter presented an expert in neuropsychology, Dr. Dee, who had examined Porter and administered a number of psychological assessments. Dr. Dee concluded that Porter suffered from brain damage that could manifest in impulsive, violent behavior. At the time of the crime, Dr. Dee testified, Porter was substantially impaired in his ability to conform his conduct to the law and suffered from an extreme mental or emotional disturbance, two statutory mitigating circumstances, Fla. Stat. §921.141(6). Dr. Dee also testified that Porter had substantial difficulties with reading, writing, and memory, and that these cognitive defects were present when he was evaluated for competency to stand trial. 2 Tr. 227-228 (Jan. 5, 1996); see also Record 904-906. Although the State’s experts reached different conclusions regarding the statutory mitigators,5 each expert testified that he could not diagnose Porter or rule out a brain abnormality. 2 Tr. 345, 382 (Jan. 5, 1996); 3 id., at 405.

The trial judge who conducted the state postconviction hearing, without determining counsel’s deficiency, held that Porter had not been prejudiced by the failure to introduce any of that evidence. Record 1203, 1206. He found that Porter had failed to establish any statutory mitigating circumstances, id., at 1207, and that the nonstatutory mitigating evidence would not have made a difference in the outcome of the case, id., at 1210. He discounted the evidence of Porter’s alcohol abuse because it was inconsistent and discounted the evidence of Porter’s abusive childhood because he was 54 years old at the time of the trial. He also concluded that Porter’s periods of being AWOL would have reduced the impact of Porter’s military service to “inconsequential proportions.” Id., at 1212. Finally, he held that even considering all three categories of evidence together, the “trial judge and jury still would have imposed death.” Id., at 1214.

The Florida Supreme Court affirmed. It first accepted the trial court’s finding that Porter could not have established any statutory mitigating circumstances, based on the trial court’s acceptance of the State’s experts’ conclusions in that regard. Porter v. State, 788 So. 2d 917, 923 (2001) (per curiam). It then held the trial court was correct to find “the additional nonstatutory mitigation to be lacking in weight because of the specific facts presented.” Id., at 925. Like the postconviction court, the Florida Supreme Court reserved judgment regarding counsel’s deficiency. Ibid.6 Two justices dissented, reasoning that counsel’s failure to investigate and present mitigating evidence was “especially harmful” because of the divided vote affirming the sentence on direct appeal — “even without the substantial mitigation that we now know existed” — and because of the reversal of the heinous, atrocious, and cruel aggravating factor. Id., at 937 (Anstead, J., concurring in part and dissenting in part).

Porter thereafter filed his federal habeas petition. The District Court held Porter’s penalty-phase counsel had been ineffective. It first determined that counsel’s performance had been deficient because “penalty-phase counsel did little, if any investigation . . . and failed to effectively advocate on behalf of his client before the jury.” Porter v. Crosby, No. 6:03-cv-1465-Orl-31KRS, 2007 WL 1747316, *23 (MD Fla., June 18, 2007). It then determined that counsel’s deficient performance was prejudicial, finding that the state court’s decision was contrary to clearly established law in part because the state court failed to consider the entirety of the evidence when reweighing the evidence in mitigation, including the trial evidence suggesting that “this was a crime of passion, that [Porter] was drinking heavily just hours before the murders, or that [Porter] had a good relationship with his son.” Id., at *30.

The Eleventh Circuit reversed. It held the District Court had failed to appropriately defer to the state court’s factual findings with respect to Porter’s alcohol abuse and his mental health. 552 F. 3d 1260, 1274, 1275 (2008) (per curiam). The Court of Appeals then separately considered each category of mitigating evidence and held it was not unreasonable for the state court to discount each category as it did. Id., at 1274. Porter petitioned for a writ of certiorari. We grant the petition and reverse with respect to the Court of Appeals’ disposition of Porter’s ineffective- assistance claim.

II
To prevail under Strickland, Porter must show that his counsel’s deficient performance prejudiced him. To establish deficiency, Porter must show his “counsel’s representation fell below an objective standard of reasonableness.” 466 U.S., at 688. To establish prejudice, he “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 694. Finally, Porter is entitled to relief only if the state court’s rejection of his claim of ineffective assistance of counsel was “contrary to, or involved an unreasonable application of” Strickland, or it rested “on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d).

Because the state court did not decide whether Porter’s counsel was deficient, we review this element of Porter’s Strickland claim de novo. Rompilla v. Beard, 545 U.S. 374, 390 (2005). It is unquestioned that under the prevailing professional norms at the time of Porter’s trial, counsel had an “obligation to conduct a thorough investigation of the defendant’s background.” Williams v. Taylor, 529 U.S. 362, 396 (2000). The investigation conducted by Porter’s counsel clearly did not satisfy those norms.

Although Porter had initially elected to represent himself, his standby counsel became his counsel for the penalty phase a little over a month prior to the sentencing proceeding before the jury. It was the first time this lawyer had represented a defendant during a penalty-phase proceeding. At the postconviction hearing, he testified that he had only one short meeting with Porter regarding the penalty phase. He did not obtain any of Porter’s school, medical, or military service records or interview any members of Porter’s family. In Wiggins v. Smith, 539 U.S. 510, 524, 525 (2003), we held counsel “fell short of . . . professional standards” for not expanding their investigation beyond the presentence investigation report and one set of records they obtained, particularly “in light of what counsel actually discovered” in the records. Here, counsel did not even take the first step of interviewing witnesses or requesting records. Cf. Bobby v. Van Hook, ante, at 6-8 (holding performance not deficient when counsel gathered a substantial amount of information and then made a reasonable decision not to pursue additional sources); Strickland, 466 U.S., at 699 (“[Counsel's] decision not to seek more character or psychological evidence than was already in hand was . . . reasonable”). Beyond that, like the counsel in Wiggins, he ignored pertinent avenues for investigation of which he should have been aware. The court-ordered competency evaluations, for example, collectively reported Porter’s very few years of regular school, his military service and wounds sustained in combat, and his father’s “over-disciplin[e].” Record 902-906. As an explanation, counsel described Porter as fatalistic and uncooperative. But he acknowledged that although Porter instructed him not to speak with Porter’s ex-wife or son, Porter did not give him any other instructions limiting the witnesses he could interview.

Counsel thus failed to uncover and present any evidence of Porter’s mental health or mental impairment, his family background, or his military service. The decision not to investigate did not reflect reasonable professional judgment. Wiggins, supra, at 534. Porter may have been fatalistic or uncooperative, but that does not obviate the need for defense counsel to conduct some sort of mitigation investigation. See Rompilla, supra, at 381-382.

III
Because we find Porter’s counsel deficient, we must determine whether the Florida Supreme Court unreasonably applied Strickland in holding Porter was not prejudiced by that deficiency. Under Strickland, a defendant is prejudiced by his counsel’s deficient performance if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S., at 694. In Florida, the sentencing judge makes the determination as to the existence and weight of aggravating and mitigating circumstances and the punishment, Fla. Stat. §921.141(3), but he must give the jury verdict of life or death “great weight,” Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975) (per curiam). Porter must show that but for his counsel’s deficiency, there is a reasonable probability he would have received a different sentence. To assess that probability, we consider “the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding” — and “reweig[h] it against the evidence in aggravation.” Williams, supra, at 397-398.

This is not a case in which the new evidence “would barely have altered the sentencing profile presented to the sentencing judge.” Strickland, supra, at 700. The judge and jury at Porter’s original sentencing heard almost nothing that would humanize Porter or allow them to accurately gauge his moral culpability. They learned about Porter’s turbulent relationship with Williams, his crimes, and almost nothing else. Had Porter’s counsel been effective, the judge and jury would have learned of the “kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” Wiggins, supra, at 535. They would have heard about (1) Porter’s heroic military service in two of the most critical — and horrific — battles of the Korean War, (2) his struggles to regain normality upon his return from war, (3) his childhood history of physical abuse, and (4) his brain abnormality, difficulty reading and writing, and limited schooling. See Penry v. Lynaugh, 492 U.S. 302, 219 (1989) (“ ‘[E]vidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background . . . may be less culpable’ ”). Instead, they heard absolutely none of that evidence, evidence which “might well have influenced the jury’s appraisal of [Porter's] moral culpability.” Williams, 529 U.S., at 398.

On the other side of the ledger, the weight of evidence in aggravation is not as substantial as the sentencing judge thought. As noted, the sentencing judge accepted the jury’s recommendation of a death sentence for the murder of Williams but rejected the jury’s death-sentence recommendation for the murder of Burrows. The sentencing judge believed that there were four aggravating circumstances related to the Williams murder but only two for the Burrows murder. Accordingly, the judge must have reasoned that the two aggravating circumstances that were present in both cases were insufficient to warrant a death sentence but that the two additional aggravating circumstances present with respect to the Williams murder were sufficient to tip the balance in favor of a death sentence. But the Florida Supreme Court rejected one of these additional aggravating circumstances, i.e., that Williams’ murder was especially heinous, atrocious, or cruel, finding the murder “consistent with . . . a crime of passion” even though premeditated to a heightened degree. 564 So. 2d, at 1063-1064. Had the judge and jury been able to place Porter’s life history “on the mitigating side of the scale,” and appropriately reduced the ballast on the aggravating side of the scale, there is clearly a reasonable probability that the advisory jury — and the sentencing judge — “would have struck a different balance,” Wiggins, 539 U.S., at 537, and it is unreasonable to conclude otherwise.

The Florida Supreme Court’s decision that Porter was not prejudiced by his counsel’s failure to conduct a thorough — or even cursory — investigation is unreasonable. The Florida Supreme Court either did not consider or unreasonably discounted the mitigation evidence adduced in the postconviction hearing. Under Florida law, mental health evidence that does not rise to the level of establishing a statutory mitigating circumstance may nonetheless be considered by the sentencing judge and jury as mitigating. See, e.g., Hoskins v. State, 965 So. 2d 1, 17-18 (Fla. 2007) (per curiam). Indeed, the Constitution requires that “the sentencer in capital cases must be permitted to consider any relevant mitigating factor.” Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). Yet neither the postconviction trial court nor the Florida Supreme Court gave any consideration for the purpose of nonstatutory mitigation to Dr. Dee’s testimony regarding the existence of a brain abnormality and cognitive defects.7 While the State’s experts identified perceived problems with the tests that Dr. Dee used and the conclusions that he drew from them, it was not reasonable to discount entirely the effect that his testimony might have had on the jury or the sentencing judge.

Furthermore, the Florida Supreme Court, following the state postconviction court, unreasonably discounted the evidence of Porter’s childhood abuse and military service. It is unreasonable to discount to irrelevance the evidence of Porter’s abusive childhood, especially when that kind of history may have particular salience for a jury evaluating Porter’s behavior in his relationship with Williams. It is also unreasonable to conclude that Porter’s military service would be reduced to “inconsequential proportions,” 788 So. 2d, at 925, simply because the jury would also have learned that Porter went AWOL on more than one occasion. Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.8 Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.9 The evidence that he was AWOL is consistent with this theory of mitigation and does not impeach or diminish the evidence of his service. To conclude otherwise reflects a failure to engage with what Porter actually went through in Korea.

As the two dissenting justices in the Florida Supreme Court reasoned, “there exists too much mitigating evidence that was not presented to now be ignored.” Id., at 937 (Anstead, J., concurring in part and dissenting in part). Although the burden is on petitioner to show he was prejudiced by his counsel’s deficiency, the Florida Supreme Court’s conclusion that Porter failed to meet this burden was an unreasonable application of our clearly established law. We do not require a defendant to show “that counsel’s deficient conduct more likely than not altered the outcome” of his penalty proceeding, but rather that he establish “a probability sufficient to undermine confidence in [that] outcome.” Strickland, 466 U.S., at 693-694. This Porter has done.

The petition for certiorari is granted in part, and the motion for leave to proceed in forma pauperis is granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

__________________

1We deny the petition insofar as it challenges his conviction.

2It is an aggravating factor under Florida law that “[t]he defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.” Fla. Stat. §921.141(5)(b) (1987). In Porter’s case, the State established that factor by reference to Porter’s contemporaneous convictions stemming from the same episode: two counts of murder and one count of aggravated assault. Tr. 5 (Mar. 4, 1988).

3Porter explained to one of the doctors who examined him for competency to stand trial that he went AWOL in order to spend time with his son. Record 904.

4Porter’s expert testified that these symptoms would “easily” warrant a diagnosis of posttraumatic stress disorder (PTSD). 2 Tr. 233 (Jan. 5, 1996). PTSD is not uncommon among veterans returning from combat. See Hearing on Fiscal Year 2010 Budget for Veterans’ Programs before the Senate Committee on Veterans’ Affairs, 111th Cong., 1st Sess., 63 (2009) (uncorrected copy) (testimony of Eric K. Shinseki, Secretary of Veterans Affairs (VA), reporting that approximately 23 percent of the Iraq and Afghanistan war veterans seeking treatment at a VA medical facility had been preliminarily diagnosed with PTSD).

5The State presented two experts, Dr. Riebsame and Dr. Kirkland. Neither of the State’s experts had examined Porter, but each testified that based upon their review of the record, Porter met neither statutory mitigating circumstance.

6The postconviction court stated defense counsel “was not ineffective for failing to pursue mental health evaluations and . . . [Porter] has thus failed to show sufficient evidence that any statutory mitigators could have been presented.” Record 1210. It is not at all clear whether this stray comment addressed counsel’s deficiency. If it did, then it was at most dicta, because the court expressly “decline[d] to make a determination regarding whether or not Defense Counsel was in fact deficient here.” Id., at 1206. The Florida Supreme Court simply paraphrased the postconviction court when it stated “trial counsel’s decision not to pursue mental evaluations did not exceed the bounds for competent counsel.” Porter v. State, 788 So. 2d 917, 923-924 (2001) (per curiam). But that court also expressly declined to answer the question of deficiency. Id., at 925.

7The Florida Supreme Court acknowledged that Porter had presented evidence of “statutory and nonstatutory mental mitigation,” 788 So. 2d, at 921, but it did not consider Porter’s mental health evidence in its discussion of nonstatutory mitigating evidence, id., at 924.

8See Abbott, The Civil War and the Crime Wave of 1865-70, 1 Soc. Serv. Rev. 212, 232-234 (1927) (discussing the movement to pardon or parole prisoners who were veterans of the Civil War); Rosenbaum, The Relationship Between War and Crime in the United States, 30 J. Crim. L. & C. 722, 733-734 (1940) (describing a 1922 study by the Wisconsin Board of Control that discussed the number of veterans imprisoned in the State and considered “the greater leniency that may be shown to ex-service men in court”).

9Cf. Cal. Penal Code Ann. §1170.9(a) (West Supp. 2009) (providing a special hearing for a person convicted of a crime “who alleges that he or she committed the offense as a result of post-traumatic stress disorder, substance abuse, or psychological problems stemming from service in a combat theater in the United States military”); Minn. Stat. §609.115, Subd. 10 (2008) (providing for a special process at sentencing if the defendant is a veteran and has been diagnosed as having a mental illness by a qualified psychiatrist).

* * *

ALDERWOODS GROUP, INC., OSIRIS HOLDING OF FLORIDA, INC., and NORTHSTAR GRACELAND, LLC, Plaintiffs, v. REYVIS GARCIA, RAMONA JOHNSON, and MERCEDES WOODBERRY, Defendants. U.S. Bankruptcy Court, Southern District of Florida, Miami Division. Case No. 08-1266-BKC-RAM-A. November 25, 2009. Robert A. Mark, Judge. Counsel: Andrew D. Zaron, Hunton & Williams, LLP, Miami, FL, for Plaintiffs-Alderwoods and Osiris. Alan J. Perlman, Adorno & Yoss, LLP, Ft. Lauderdale, FL, for Plaintiff-Northstar. Charles W. Throckmorton, Kozyak Tropin & Throckmorton, P.A., Miami, FL, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’

CROSS-MOTION FOR SUMMARY JUDGMENT AND DENYING

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
The Plaintiffs in this adversary proceeding are the owners and former owners of a cemetery in Miami, Florida. The Defendants are relatives of family members buried in the cemetery. The relatives have sued the cemetery owners in state court for gross negligence, tortious interference with dead bodies, intentional or reckless infliction of emotional distress, and injunctive relief. The claims arise from the alleged failure of the cemetery to locate the bodies of the buried relatives and in one instance, from allegedly disturbing or desecrating the remains in an effort to locate the grave.

The cemetery owner and prior owners filed this adversary proceeding seeking declaratory relief, specifically, a declaration that all of the claims asserted in the state court case were discharged in a prior bankruptcy case. Cross motions for summary judgment are pending. The court finds that the publication notice given in the prior bankruptcy case did not comport with due process. Therefore, the pending state court claims were not discharged.

Factual and Procedural Background
As described in the introduction, the key events underlying this proceeding occurred in a cemetery located in Miami, Florida, known as Graceland Memorial Park South (“Graceland”) and in a bankruptcy case in the District of Delaware, which included the owner of Graceland. To better understand the players, it is useful to describe how each of the Plaintiffs in this proceeding are connected to ownership of the Graceland cemetery.

Plaintiff, Osiris Holding of Florida, Inc. (“Osiris”) purchased Graceland on March 28, 1991. Four years later, on March 17, 1995, the Plaintiff, Alderwoods Group, Inc. (“Alderwoods”), acquired Osiris in a stock purchase. Alderwoods was then known as Loewen Group International, Inc. (“Loewen Group”). On December 19, 2006, after the bankruptcy case described below, Plaintiff, Northstar Graceland, LLC (“Northstar”) acquired Graceland from Osiris.

The Prior Bankruptcy Case
Loewen Group, Osiris, and 814 other Loewen Group subsidiaries, filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code on June 1, 1999 in the United States Bankruptcy Court for the District of Delaware. These cases were administratively consolidated under Case No. 99-01244 (PJW) (The Delaware bankruptcy case will be referred to in this Opinion as the “Prior Bankruptcy Case.” Plaintiffs, Alderwoods and Osiris, will be referred to as the “Former Debtors”).

On October 21, 1999 the Delaware bankruptcy court entered an Order Establishing Bar Dates for Filing Proofs of Claim and Approving Form and Manner of Notice Thereof (the “Bar Date Order”) [CP# 46, Ex. D]. Specifically, the Bar Date Order approved the notice procedures to known creditors and authorized the Debtors to serve notice on unknown creditors via publication in the following national periodicals: The Wall Street Journal, The New York Times, USA Today, The Globe and The National Post. It further noted that “the form and manner of notice of the Bar dates approved hereby are deemed to fulfill the notice requirements of the Federal Rules of Bankruptcy Procedure.” (Bar Date Order ¶3.) The approved form of publication notice only contained the name of one debtor, the parent company, Loewen Group. The Bar Date Order provides further that “any Entity that is required to file a proof of claim in these chapter 11 cases . . . but that fails to do so in a timely manner, shall be forever barred, estopped and enjoined from . . . asserting any Claim against any of the debtors that such entity has.” (Bar Date Order ¶ 11.) Debtors complied with the Bar Date Order and published notice to all unknown creditors pursuant to the guidelines set forth in the Bar Date Order (the “Publication Notice”) [CP# 46, Ex. E].

The Debtors filed their Fourth Amended Joint Plan of Reorganization on September 10, 2001 and the plan was confirmed on December 5, 2001. The plan became effective on January 2, 2002 (“Effective Date”). On the Effective Date, Loewen Group officially changed its name to Alderwoods.

The State Court Action
On December 12, 2004, Reyvis Garcia (“Garcia”) filed a complaint against Northstar and the Former Debtors in the Circuit Court, Miami-Dade County, Florida, Case No. 04-25646-CA-32 (the “State Court Case”). Some two years later Defendants Johnson and Woodbury joined the State Court Case as plaintiffs. The Fourth Amended Complaint (the “State Court Complaint”) [CP# 46, Ex. K], filed on March 3, 2008, contains four bases for relief: (1) Tortious Interference with Dead Bodies; (2) Intentional or Reckless Infliction of Emotional Distress; (3) Gross Negligence; and (4) Equitable/ Injunctive Relief.1 The crux of the complaint is that Graceland’s mismanagement and poor record-keeping rendered Graceland unable to promptly and accurately locate thousands of remains buried in the old section of the cemetery.

The facts surrounding each of the state court plaintiffs’ claims are fairly similar. All involve stories of families who lost their loved ones only to have their loved ones lost again (The state court plaintiffs, who are the named Defendants in this proceeding, will be referred to in this Opinion as the “Tort Claimants”). A more detailed summary of the facts alleged in the State Court Case follows.

Reyvis Garcia’s mother, Eloisa Garcia, passed away in 1986 and was buried at Graceland. The plot was purchased by his aunt, Alicia Garcia, who was an original state court plaintiff until the time of her own passing. Due to the family’s economic status at the time of Eloisa’s death, they did not purchase a headstone for the grave site. Sometime in 2003, Reyvis and Alicia attempted to visit Eloisa’s grave, but the employees at Graceland could not locate the site. The Garcias requested that Graceland promptly locate Eloisa’s remains. However, because of the site’s record keeping problems, the only method of locating and identifying remains involved digging up a series of grave sites in the vicinity, removing the vault lid with a backhoe and placing the lid on a burial space so that the coffin and remains within could be viewed and inspected to determine who was buried at that specific location. Because of the time and expense of conducting this process, it took several months to locate Eloisa’s burial site.

In 1989, Mercedes Woodberry buried her stillborn child, Sacressida Constance Gilbert, at Graceland. At that time, no headstone was purchased for the baby’s grave site. In 1994, Mercedes contacted Graceland about purchasing a headstone for the site, but was informed that the baby’s burial site could not be located. In 1995, Ms. Woodberry went back to Graceland and was told that her child’s remains were still missing. Ms. Woodberry visited Graceland again in 2000, but her stillborn child’s grave site remained a mystery. In 2008, when Graceland inspected what they thought was Sacressida’s final resting place, the remains were inconsistent with those of Sacressida Constance Gilbert.

Ramona Johnson’s father, Robert Williams, Sr., passed away and was buried at Graceland in 1993. In Johnson’s case, a temporary marker and burial card was placed on the site at the time of the burial. The family also purchased a burial marker from the Veterans Administration, but Graceland informed the family that without a granite headstone, they could not affix the military marker to the site. No headstone was ever purchased for Mr. Williams’s grave site. The temporary marker had faded by 1995 and in 2001, Ms. Johnson was completely unable to find her father’s final resting place.

Procedural Background
On April 7, 2008, the Former Debtors and Northstar initiated this adversary proceeding seeking declaratory relief that all of the claims in the State Court Case, including the claim for injunctive relief, were claims under §101(5) of the Bankruptcy Code that were discharged in the Prior Bankruptcy Case.

Northstar is separately named as a plaintiff in this proceeding since it is the current owner of Graceland and a defendant in the State Court Case. However, Northstar’s right to relief in this adversary proceeding rises or falls with the rights of the Former Debtors.

On May 7, 2008, the Tort Claimants filed a Motion to Dismiss Amended Complaint or, in the Alternative, for Abstention and/or Remand (“Motion to Dismiss”) [CP# 10]. The Court found that it had subject matter jurisdiction over the dispute and that neither abstention nor remand was required or appropriate [CP# 17]. The Court questioned whether venue was appropriate since the Prior Bankruptcy Case was filed and administered in the Delaware Bankruptcy Court. In response, the parties stipulated to maintaining venue in this Court. On June 9, 2008, Defendants filed their Answer and Affirmative Defenses to Amended Complaint [CP# 19], asserting that they did not receive adequate notice in the Prior Bankruptcy Case and therefore, their claims were not subject to the discharge. They also alleged that their State Court Case claims were not dischargeable §101(5) claims. Thereafter, the parties both moved for summary judgment.

The Court conducted a hearing on the motions for summary judgment on October 3, 2008. The issues before the Court have been well briefed. In particular, the Court has considered Plaintiffs’ Motion for Summary Judgment [CP# 46] and accompanying exhibits, Defendants’ Response to Plaintiffs’ Motion for Summary Judgment [CP# 47] and Cross-Motion for Summary Judgment [CP# 48] and accompanying exhibits, Plaintiffs’ Reply Memorandum of Law in Support of Plaintiffs’ Motion for Summary Judgment and Memorandum of Law in Opposition to Defendants’ Cross-Motion for Summary Judgment (“Plaintiffs’ Reply”) [CP# 52], Defendants’ Reply to Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Cross-Motion for Summary Judgment (“Defendants’ Reply”) [CP# 53], as well as the arguments of counsel at the October 3rd hearing.

Discussion
The Former Debtors contend that they are entitled to summary judgment as a matter of law because the State Court Complaint is barred by the confirmation order in the Prior Bankruptcy Case. Defendants, the Tort Claimants, assert first that their claim for equitable relief is not a claim as defined in Section 101(5) of the Bankruptcy Code and therefore was not affected by the discharge. Second, they argue that even if the damage claims and injunctive relief claims were “claims” in the Prior Bankruptcy Case, the publication notice given to the Tort Claimants in the prior bankruptcy case was constitutionally deficient and, as such, none of the claims were discharged. For the reasons set forth below, the Court finds that all of the claims in the State Court Case, including the claim for injunctive relief, as pled in the State Court Complaint, are claims under 11 U.S.C. §101(5). However, the Court finds for the Tort Claimants on the notice issue. The Publication Notice provided to the Tort Claimants in the Prior Bankruptcy Case was constitutionally deficient and thus, the claims were not discharged.

Summary Judgment Standard
Summary Judgment is only proper where the “pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of showing an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 105 S.Ct. 2548, 2553 (1986). If the Court, after examining all factual inferences in the light most favorable to the non-moving party finds no issue of material fact then summary judgment is appropriate. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

A. The Damage Claims and the Injunctive Relief, as Pled in the State Court Case, Were Claims in the Prior Bankruptcy Case
The Former Debtors contend that confirmation of their plan in the Prior Bankruptcy Case discharged those entities of their debts. The term debt is defined in the Bankruptcy Code as a “liability on a claim”. 11 U.S.C. §101(12). In turn, the Bankruptcy Code defines a “claim” as:

(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or

(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.
11 U.S.C. §101(5) (emphasis added). At the hearing on the motions for summary judgment, Defendants’ counsel conceded that the state court tort claims are §101(5) claims subject to discharge. Therefore, the only remaining §101(5) claim issue is whether or not the equitable relief sought in the State Court Complaint “gives rise to a right to payment,” rendering it a claim subject to discharge.

The issue of whether a request for injunctive relief is a claim was addressed by the United States Supreme Court in Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705 (1985). There, the State of Ohio obtained an environmental injunction pursuant to a settlement agreement with Kovacs, the CEO and shareholder of an industrial and hazardous waste disposal plant. When Kovacs did not comply with the clean-up required by the settlement agreement, a receiver was appointed to complete the task. Thereafter, Kovacs filed a bankruptcy petition and the State of Ohio sought a declaration from the bankruptcy court that the injunction was not a debt, and therefore not a claim which Kovacs could discharge in his bankruptcy case.

The Supreme Court affirmed the lower court ruling in favor of Kovacs finding that the equitable remedy sought by the state gave rise to a right to payment. The Court noted that “there is no suggestion by [Ohio] that [Kovacs] can render performance under the affirmative obligation other than by the payment of money.” Kovacs, 469 U.S. at 281, 105 S.Ct. at 708. Moreover, in a lengthy footnote, the Kovacs Court reasoned that the State of Ohio’s discovery of Kovacs’ assets led to the conclusion that the State was primarily interested in monetary, not injunctive relief. 469 U.S. at 282 n. 9, 105 S.Ct. at 709 n. 9. It reasoned that, under the circumstances, “the cleanup duty had been reduced to a monetary obligation.” 469 U.S. at 283, 105 S.Ct. at 710; accord In re Penn Terra Ltd., 733 F.2d 267, 278 (3d Cir. 1984) (Courts are generally focused on “whether plaintiff seeks compensation for past damages or prevention of future harm.”).

Here, as presently pled, the State Court Complaint seeks “a permanent mandatory injunction that requires [State Court] Defendants to fund a court supervised program that provides for an Examiner, the establishment of a Blue Ribbon panel of experts to survey, test monitor and study the cemetery and disturbed remains to ascertain the location of and disposition of the subject remains and to insure their proper identification and perpetual care.” (State Court Complaint ¶ 122.) (emphasis added).

The Tort Claimants argue that the injunctive relief sought is mandatory under Florida law and cite to the statutory care mandated by the Florida Cemetery Act, Chapter 497, Florida Statutes. That act obligates all Florida cemeteries to exercise care and maintenance of their premises. While the Court agrees that a cemetery’s compliance with Florida’s Cemetery Act is mandatory, it finds the Tort Claimants’ argument unpersuasive since the State Court Complaint does not seek relief under Florida Statutes Chapter 497. In fact, the State Court Complaint makes no mention of Florida Statutes Chapter 497 and its statutory framework, nor does it seek a prohibitive injunction. Rather, the Complaint seeks a mandatory injunction requiring the payment of funds and the appointment of an independent examiner. Thus, the relief presently sought in the State Court Complaint is analogous to the relief sought in Kovacs.

For the foregoing reasons, the Court finds that the equitable relief sought in the State Court Complaint gives rise to a right to payment and was thus a claim under §101(5) in the Prior Bankruptcy Case. This ruling is limited to a determination that the injunctive relief, as pled in the presently pending State Court Complaint in the State Court Case, gives rise to a right of payment and is therefore a “claim” that was subject to discharge in the Prior Bankruptcy Case. Whether the Tort Claimants could amend their count for injunctive relief to seek relief that would not be treated as a bankruptcy claim is beyond the scope of this Order.2

B. The Publication Notice Provided by Former Debtors Did Not Meet the Constitutional Standards of Due Process
In their affirmative defenses to the Amended Complaint, the Tort Claimants allege that they were entitled to actual notice as known creditors. However, in their Cross Motion for Summary Judgment, they argue that even if they were unknown creditors entitled only to publication notice, the publication notice given in the Prior Bankruptcy Case was insufficient, as a matter of law, to satisfy the Tort Claimants’ due process rights. The Court agrees.3

1. The Supreme Court Established the Standard for Evaluating the Constitutional Sufficiency of Publication Notice in Mullane v. Hanover
The Tort Claimants do not dispute the fact that the court in the Prior Bankruptcy Case approved the form and manner of the Publication Notice nor do they dispute the fact that upon confirmation of the plan in the Prior Bankruptcy Case, §1141(d)(1)(A) of the Bankruptcy Code discharged debts arising before confirmation. Rather, they rely on the well-accepted principle that the discharge only applies to creditors who received constitutionally adequate notice of the bankruptcy case and the deadline for filing claims. In re Spring Valley Farms, Inc., 863 F.2d 832 (11th Cir. 1989); Grand Pier Center LLC v. ATC Group Services, Inc., 2007 WL 2973829 (N.D. Ill., Oct. 9, 2007).

The Former Debtors do not contest this principle of law and, in fact, acknowledge in their Motion for Summary Judgment that “[c]ourts have recognized that discharge of a particular asserted claim under §1141(d)(1)(A) may violate the Fifth Amendment [to the United States Constitution] if the claimant was not provided sufficient due process prior to discharge.” (Plaintiffs’ Motion for Summary Judgment p. 17, citing Gencor Indus., Inc. v. CMI Terex Corp. (In re Gencor Indus., Inc.), 298 B.R. 902, 914 (Bankr. M.D.Fla. 2003)). The Former Debtors argue, however, that the Publication Notice in the Prior Bankruptcy Case was constitutionally sufficient.

Notice to unknown creditors may be provided by publication. Tulsa Professional Collections Serv. , Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340 (1988); Naimoli v. Anchor Glass Container Corp. (In re Anchor Glass Container Corp.), 325 B.R. 892, 895 (Bankr. M.D.Fla. 2005). However, the Delaware court’s approval of the Publication Notice in the Prior Bankruptcy Case is not a de facto finding of due process and therefore does not end the analysis. Cf. Grand Pier Center LLC v. ATC Group Services, Inc., 2007 WL 2973829 at *12 (N.D.Ill. Oct. 9, 2007) (“Even if the [bankruptcy court] Orders . . . can be read as approving of the Notice of Publication, . . . the bankruptcy court’s order cannot supercede the requirements of the Bankruptcy Rules.”). Rather, the sufficiency of the Publication Notice provided here must be examined under the due process standard adopted by the Supreme Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652 (1950).

In Mullane, the Supreme Court established the standard for determining whether publication notice is sufficient under the due process clause of the Constitution (the “Due Process Clause”):

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
339 U.S. at 314, 70 S.Ct. at 657 (emphasis added).

The Mullane standard is directly applicable to notice issues in bankruptcy cases. Fogel v. Zell, 221 F.3d 955, 962 (7th Cir. 2000); In re UAL Corp., 386 B.R. 701, 712 (Bankr. N.D.Ill. 2008) rev’d on other grounds, 398 B.R. 243 (N.D.Ill. 2008). In analyzing specifically whether publication notice of a Chapter 11 bar date satisfies the Mullane standard, the proper inquiry is whether the party providing notice “acted reasonably in selecting means likely to inform persons affected . . . ” In re The Charter Co., 113 B.R. 725, 728 (Bankr. M.D.Fla. 1990), rev’d on other grounds 125 B.R. 650 (M.D.Fla. 1991).

The Supreme Court recognized in Mullane that publication notice is not a reliable way to actually reach creditors observing that “[c]hance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper.” 339 U.S. at 315, 70 S.Ct. at 658. Nevertheless, this does not mean that the form and manner of publication notice employed by a debtor is irrelevant. The Mullane Court also noted that “[t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” 339 U.S. at 315, 70 S.Ct. at 657. Thus, publication notice in a bankruptcy case is not a mere formality. If a debtor’s effort to provide notice to unknown creditors is not reasonable, the unknown creditors’ claims will not be discharged. That is the law.

In applying the constitutional standard to the Publication Notice at issue here, the Court will first describe why the Publication Notice did not comply with applicable provisions of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”). Next, the Court will explain why the sufficiency of the Publication Notice provided in the Prior Bankruptcy Case of over 800 jointly administered debtors must be judged under the same standard that would have applied if Former Debtor Osiris had been the only debtor. The final section of the Opinion will describe why the Publication Notice was clearly deficient under the facts and circumstances of this case.

2. The Publication Notice Failed to Comply With Rules 1005 and 2002(n) of the Federal Rules of Bankruptcy Procedure
The Bankruptcy Rules prescribe the form of notices which debtors must provide to creditors. In 1999, when the Publication Notice was issued in the Prior Bankruptcy Case, Rule 1005 provided that the title of the case in the caption of a bankruptcy petition shall include the name of the debtor and “all other names used within six years before filing the petition.” Fed.R.Bankr.P. 1005. The Advisory Committee Note specifically states that “[a]dditional names of the debtor are also required to appear in the caption of each notice to creditors.” Fed.R.Bankr.P. 1005, Notes of the Advisory Committee. Rule 2002(n) also makes it clear that the Rule 1005 caption requirement does not only apply to the petition stating, in relevant part, that “[t]he caption of every notice given under [Rule 2002] shall comply with Rule 1005.” Fed.R.Bankr.P. 2002(n) (emphasis added).

The requirement that notice include “all other names” of the debtor “enables creditors to identify the debts that the debtor owes them, which may have been incurred under a name other than that currently used by the debtor.” 9 Collier on Bankruptcy ¶ 1005.01, p. 1005-2 (15th ed. 2008). Moreover, the clause “all other names” in Rule 1005 “include trade names . . . as well as any other names under which the debtor may previously have operated.” Id.

Without question, the Publication Notice in the Prior Bankruptcy Case violated Rule 2002(n) and Rule 1005. The only debtor named in the caption was the parent company, Loewen Group International, Inc. Former Debtor Osiris, the debtor subject of the Tort Claimants’ claims, was not named in the caption nor was Graceland Memorial Park South, the name under which Osiris or its predecessors conducted business with the Tort Claimants or their families.

Courts have held that failure to comply with the captioning requirement is a defect which renders notice deficient under Mullane. See, e.g., Grand Pier Center LLC v. ATC Group Services, Inc., 2007 WL 2973829 (N.D.Ill. Oct. 9, 2007); In re AM Int’l, Inc., 142 B.R. 252 (Bankr. N.D.Ill. 1992). Both of these decisions are instructive since they both involved a creditor who did business with the debtor under a name not listed in the caption of the bar date notice.

In Am Int’l, the creditor, Wella, bought a manufacturing facility from the debtor years before the debtor filed its bankruptcy case. At the time of the purchase, the debtor’s name was Addressograph-Multigraph Corporation. Three years before filing bankruptcy, the company changed its name to AM International, Inc. (“AM International”), and that was the only name listed in the caption of the bar date notice.

After AM International received its discharge, Wella discovered that the property it had purchased from the debtor prior to its bankruptcy was contaminated with hazardous waste. Like the Tort Claimants in this proceeding, Wella sued the reorganized debtor in a non-bankruptcy forum and like the Former Debtors here, AM International filed an adversary proceeding in the bankruptcy court. Again, like here, the former debtor sought a declaration that Wella’s claim had been discharged in the prior bankruptcy case and sought an injunction barring Wella from pursuing its lawsuit.

Wella argued that the defect in the caption of the notice of bar date violated the Due Process Clause. The Am Int’l court agreed. As in the instant proceeding, the court assumed, for summary judgment purposes, that Wella was an unknown creditor which could be served by publication. Nevertheless, the court found that the caption in the publication notice was defective under Rule 1005 since it did not include, as the rule requires, the name Addressograph-Multigraph Corporation, a name used by the debtor within six years of its bankruptcy filing. The rule violation was particularly significant since Wella’s claim arose from a transaction with the debtor when its name was Addressograph-Multigraph Corporation. The court concluded that the notice was “not reasonably calculated to inform Wella of the time in which it was required to file claims.” In re Am Int’l, 142 B.R. at 257. As such, the notice failed to meet the due process standard in Mullane and the court granted Wella’s motion for summary judgment finding that its claim was not discharged.

In Grand Pier, the debtor was one of eight jointly administered cases and the critical name omitted from the caption was a name under which the debtor did business. Specifically, the creditor, Grand Pier, retained a company called “ATC Associates, Inc.” as an environmental consultant. All invoices to the creditor were issued in that name. Thereafter, ATC Group Services, Inc., filed a Chapter 11 petition. In compliance with Rule 1005 the petition included “ATC Associates, Inc.” since it was a name used by the debtor in the six years prior to the petition. However, the notice of bar date did not include the name ATC Associates, Inc. The Grand Pier court found that the bar date notice failed to comply with Rule 1005 and as such, was insufficient to result in a discharge of Grand Pier’s claims. In re Grand Pier, 2007 WL 2973829 at *7.

Like the debtors in Grand Pier and AM Int’l, the Former Debtors failed to comply with Rule 1005 and Rule 2002(n), since the Publication Notice did not include the name Osiris Holding of Florida, Inc., the debtor which owned the Graceland cemetery, nor the name Graceland Memorial Park South, the name under which Osiris did business. The Former Debtors argue that the rule violation does not render the notice insufficient. In particular, they note that Rule 2002(n) provides that the caption of notices must comply with Rule 1005 and include the information required by §342(c) of the Bankruptcy Code. Like Rule 1005, §342(c) requires notice to include the name of the debtor. In shifting the focus of the argument to §342(c), the Former Debtors then note that §342(c), as it read when the Publication Notice was issued in the Prior Bankruptcy Case, expressly stated that “the failure of such notice to contain such information shall not invalidate the legal effect of such notice.” 11 U.S.C. §342(c). Thus, the Former Debtors argue that the captioning defect was not a defect that necessarily rendered the notice a denial of due process.

The Court agrees that the rule violations do not mandate a finding of constitutional infirmity. Nevertheless, the failure to name Osiris or Graceland in the caption was not a minor procedural defect. As other courts have found, the accuracy of the caption is of substantive importance in bankruptcy cases. In re Austin, 46 B.R. 358, 360 (Bankr. E.D.Wisc. 1985). After all, “[i]t is the caption which informs creditors of exactly who has commenced a bankruptcy case so that the creditor has an opportunity to determine whether they have a claim against the debtor’s estate.” In re AM Int’l, 142 B.R. at 256. The Tort Claimants here had no such opportunity since the caption of the Publication Notice provided no notice that Osiris had commenced a bankruptcy case.

In sum, although the Former Debtors’ clearly failed to provide notice in compliance with the Bankruptcy Rules, this defect alone does not automatically equate to a finding of a violation of due process. The Court must still analyze the sufficiency of the notice under the standard set forth in Mullane. In applying that standard to the instant case, the Court finds the following two inquiries particularly instructive: (1) what effort would have been reasonable if Osiris, the owner of Graceland, had been the only debtor in the Prior Bankruptcy Case; and (2) what did Osiris know, on or before the Effective Date, about problems existing at Graceland. As explained in the remainder of the Opinion, this analysis results in the clear conclusion that the Publication Notice here did not provide due process to the Tort Claimants.

3. The Notice Provided to the Tort Claimants as Creditors of One of 816 Jointly Administered Debtors Should be Scrutinized Under the Same Standard That Would Apply if Former Debtor Osiris had Been the Only Debtor
In attempting to minimize or justify their failure to comply with the Bankruptcy Rules, the Former Debtors argue that including a caption with the names of each of the 816 debtors would have required “extraordinary effort.” (Plaintiffs’ Reply p. 11.) They argue further that “[p]ublication notice in a sizeable complex case with multiple debtors would become prohibitively burdensome and expensive under the standard advanced by Defendants.” (Id. p. 12.) Thus, they argue that complying with the caption requirements in Bankruptcy Rule 1005 and publishing in local newspapers was not constitutionally required in this large case consisting of 816 different debtors. The Tort Claimants argue persuasively that the Former Debtors are wrongly proposing “an inverse sliding scale of due process whereby the Mullane ‘reasonable calculation’ notice standard decreases as the number of debtors in an administratively consolidated case increases.” (Defendants’ Reply p. 1.)

Clearly, the Tort Claimants are correct. The unknown creditors of each debtor in a jointly administered case are constitutionally entitled to notice judged under the same standard that would apply if they were unknown creditors of a single debtor. Joint administration provides efficiency and cost savings in multiple debtor cases. However, joint administration does not affect the substantive rights of creditors. In re Blair, 226 B.R. 502 (Bankr. D.Me. 1998). Those substantive rights obviously include the right to notice comporting with due process.

This proposition is not remarkable and indeed, at oral argument, Former Debtors’ counsel conceded that the sufficiency of the Publication Notice should be viewed the same as it would have been viewed if Osiris, the owner of Graceland, had been the only debtor in the Prior Bankruptcy Case.

There is one other flaw in the Former Debtors’ reference to the impracticality or expense of publishing notice with the names of all of the jointly administered debtors, namely, the fact that this Court is not determining whether all the debtors should have been included in the caption of a publication notice. This Court’s task is not to determine the sufficiency of the Publication Notice as to unknown creditors of all 816 jointly administered debtors. Rather, because these cases were jointly administered, and not substantively consolidated, the sole issue before the Court is whether notice to the Tort Claimant creditors of Former Debtor Osiris was sufficient.

Thus, the Court must examine what Osiris, the Former Debtor that owned and operated Graceland, knew, as of the Effective Date of the plan, and what reasonable notice it should have provided to its unknown creditors under the circumstances. That issue must be judged no differently than if Osiris had been the only debtor in the Prior Bankruptcy Case.

4. The Publication Notice Provided in the Prior Bankruptcy Case was Constitutionally Deficient Particularly Since the Former Debtors Were Aware of Record Keeping and Grave-Site Location Problems at Graceland
As the Former Debtors acknowledge, “the due process inquiry requires a consideration of the totality of the circumstances in each particular case.” (Plaintiffs’ Reply p. 16.) “Process that may be constitutionally sufficient in one setting may be insufficient in another.” In re Mansary-Ruffin, 530 F.3d 230, 239 (3rd Cir. 2008). Here, for the reasons explained earlier, the “particular case” is the case of Osiris, the Former Debtor that owned the Graceland cemetery, the subject of the State Court Case. The “totality of the circumstances,” as applied here, includes the circumstances at Graceland that Osiris was aware of on or before the Effective Date of the plan.

The record clearly establishes that the Former Debtors knew about problems at Graceland on the Effective Date of their plan. From the Court’s own review, this much is clear:

(a) Prior to confirmation, Graceland had serious problems locating bodies in the older section of its cemetery [CP# 48, Ex. B];

(b) Prior to confirmation, at least one of the Tort Claimants, and possibly two, were notified by Graceland that the burial sites of their loved ones could not be located [CP# 48, Exs. J & K];

(c) Since at least 1996, the State of Florida’s Division of Banking and Finance was unable to conduct an investigation of Graceland’s books and records due to inaccuracies and incompleteness of documents reflecting burial space inventory and pre-need trust accounts, leading to at least one suspension of its license and certificate of authority to operate certain cemetery functions [CP# 48, Exs. C & D]; and,

(d) According to Graceland, as a result of its problems locating burial sites in the old section of the cemetery and at the request of the State of Florida, Graceland constructed a mass memorial some time between 2000 and 2002 in order to identify and honor the thousands of lost bodies buried in the old section of the cemetery [CP# 48, Exs. B & F].
Thus, there is no genuine issue of material fact that prior to the Effective Date of their plan of reorganization, the Former Debtor Osiris knew enough about record-keeping problems and lost burials, or at the very least, the difficulties it was experiencing locating grave-sites at Graceland, to reasonably expect future problems and future claims from family members like the Tort Claimants here.

Under Mullane, the Former Debtor had a constitutional obligation to craft a notice “reasonably calculated,þ under all of the circumstances, to apprise the Tort Claimants of the pendency of the case and an opportunity to file claims. Mullane, 339 U.S. at 314, 70 S.Ct. at 657. Given their awareness of problems at Graceland, this calculation should have included, at the very least, compliance with the Bankruptcy Rules which required the notice to include the name of the particular debtor, Osiris, which owned Graceland, and Graceland Memorial Park South, the name of the cemetery itself. Moreover, the notice should have been published in a South Florida newspaper where creditors of Graceland would at least have had the opportunity to see the notice affecting their rights.

Returning first to the significance of the captioning violation, although Grand Pier and AM Int’l found that the rule violation itself was sufficient to render the notices in those cases deficient, both of those courts also found the notices to be constitutionally deficient under Mullane. In Grand Pier, the court stated that even if it “made a more typical fact-sensitive assessment of due process concerns familiar to courts for decades under [Mullane],”the notice was deficient and the creditor was entitled to summary judgment. In re Grand Pier, LLC, 2007 WL 2973829 at *12 n. 7. In finding the notice insufficient under Mullane, the court stated:

Under the record presented, if Grand Pier was an unknown creditor, it seemingly had no notice via the publication notices that its claim against “ATC Associates, Inc.” (i.e., the only name provided by the entity it had ever done business with), was subject to an upcoming putative bar date via [the ATC Group bankruptcy case].
2007 WL 2973829 at *7 n. 5. Along the same lines, in finding the notice deficient in AM Int’l, the court stated that “[t]he issue in the present case as framed by the Supreme Court’s [Mullane] . . . decision, is whether AMI’s Notice of Bar Date was reasonably calculated to inform Wella of AMI’s bankruptcy so that Wella could determine whether it held a claim against AMI’s bankruptcy estate.” In re AM Int’l, 142 B.R. at 255.

Similar to the conclusions drawn in Grand Pier and AM Int’l, this Court concludes that the Former Debtors’ failure to comply with the captioning requirements for the Publication Notice in the Prior Bankruptcy Case was a violation of due process because, under the circumstances here, the Publication Notice was not reasonably calculated to inform the Tort Claimant creditors of Former Debtors’ pending bankruptcy and bar date.

Finally, the Court turns to the failure of the Former Debtors to publish notice in a South Florida newspaper. The Former Debtors argue that publishing notice only in national publications was reasonable arguing that “[i]t would be unduly burdensome and expensive to force a debtor with national operations and hundreds of different places of business to publish a bar date notice everywhere it does business.” (Plaintiffs’ Reply p. 16.) In support, Plaintiffs cite In re U.S. Airways, Inc., 2005 WL 3676186, *6 (Bankr. E.D.Va. Nov. 21, 2005) and In re Best Products Co., 140 B.R. 353, 358 (Bankr. S.D.N.Y. 1992). In both of these cases, the bankruptcy court found that notice published in national publications was sufficient.

The rulings in U.S. Airways and Best Products have no application in this proceeding. Those two debtors were nationally known companies doing business under a single, nationally known name. Those are not the facts here. These Tort Claimants, with loved ones buried (somewhere) in the Graceland cemetery, could not possibly have known that notice of the Delaware bankruptcy case of the “Loewen Group,” published in the New York Times or USA Today, had anything whatsoever to do with the Graceland cemetery.

In arguing against the need for publication in a local newspaper, Former Debtors also cite Castleman v. Liquidating Trustee, 2007 WL 2492792 (N.D.N.Y. Aug. 28, 2007). Their reliance on Castleman is misplaced. In that case, a plan was confirmed for debtor, Agway, in 2004. Publication notice was included in two national newspapers, the New York Times and the Wall Street Journal. Notice was also published in the Syracuse Post-Standard, the city where Agway was conducting business.

A year after confirmation, the former debtor, Agway, was sued in state court in Texas by individuals who claimed they were exposed to asbestos while working in a Texas refining plant formerly owned by Agway. The claimants argued that their claims were not discharged and argued, in particular, that Agway should have provided publication notice in a Texas newspaper, in the vicinity of Galveston where the plant was located.

The court rejected the claimants’ argument for two reasons. First, when Agway filed its bankruptcy case, it had no reason to believe there were potential asbestos claimants in Texas. Second, Agway was not conducting any business in Texas when it filed bankruptcy. In fact, the Texas refinery’s assets were sold in 1987, fifteen (15) years before the bankruptcy. For these reasons, the Court found insufficient facts to demonstrate that Agway should have published in a local Galveston newspaper. Castleman, 2007 WL 2492792 at *5-6.

The facts in the instant proceeding are far different. First, although no formal claims had been filed against Osiris before the Effective Date of the plan in the Prior Bankruptcy Case, Osiris was aware of record-keeping and grave location problems that existed at the time. Second, unlike the debtor in Castleman, Former Debtor Osiris owned and operated Graceland, in Miami, before and during the Prior Bankruptcy Case. If anything, the fact that debtor Agway in the Castleman case published notice in a local Syracuse newspaper, where it was doing business, supports the Tort Claimants’ argument that Former Debtor Osiris should have published notice in a South Florida newspaper, where Osiris was doing business.

In sum, under the circumstances here, publishing only in national publications, with no reference to Osiris or Graceland, provided no meaningful notice at all and therefore was not reasonable under the circumstances.

Conclusion
The Former Debtor Plaintiffs in this proceeding seek to enforce the discharge obtained in the Prior Bankruptcy Case against the Tort Claimant Defendants. The Tort Claimants seek to pursue tort claims arising from problems known to the Former Debtors prior to the effective date of their Chapter 11 plan. The Former Debtors argue that their court approved Publication Notice in national newspapers was sufficient to satisfy due process. In Mullane, the Supreme Court observed that “when notice is a person’s due, process which is a mere gesture is not due process.” Mullane, 339 U.S. at 315, 70 S.Ct. at 657. That observation aptly applies in the instant case. The Former Debtors’ notice to the Tort Claimants, published only in national publications with no reference to Osiris or Graceland Cemetery, was just such a “mere gesture.” Therefore, the Tort Claimants did not receive constitutionally sufficient notice in the Prior Bankruptcy Case and as such, their claims were not discharged. The Tort Claimants are entitled to summary judgment in this proceeding.

Therefore, it is –

ORDERED as follows:

1. Plaintiff’s Motion for Summary Judgment is denied.

2. Defendants’ Cross-Motion for Summary Judgment is granted.

3. The Court will enter a separate Final Judgment in favor of the Defendants declaring that the claims asserted in the State Court Case were not discharged in the Prior Bankruptcy Case.

__________________

1On September 17, 2007, the plaintiffs filed a motion in the State Court Case to certify a purported class of similarly situated parties [CP# 48, Ex. H]. According to the parties, the motion was still pending when this adversary proceeding was commenced.

2Although the Court is appropriately hesitant to enter an advisory opinion, it does note that it is not adopting the Former Debtors’ argument that any injunctive relief which would require the expenditure of funds constitutes a claim. As the Former Debtors acknowledge, an injunction which requires the owner of an environmentally contaminated site to ameliorate an ongoing hazard is not a dischargeable claim. See e.g., In re Torwico Elecs., Inc. 8 F.3d 146, 149-150 (3d Cir. 1993). In these types of cases, even though the injunctive relief will require defendant to spend money to comply, this does not mean the relief gives rise to a “right of payment” rendering it a claim under the Bankruptcy Code.

3Since the Court finds that the notice was deficient, even if the Tort Claimants were unknown creditors, it does not reach the issue of whether there is a genuine issue of fact with respect to whether they were known creditors entitled to actual notice in the Prior Bankruptcy Case.

* * *