IN RE GLINSKI (Bankr.D.Idaho 2005)

In re: Gregory Joseph Glinski Shannon Louise Glinski, Debtors. C.J.L. Estates, L.L.C., an Idaho Limited Liability Co., Plaintiff, v. Gregory Joseph Glinski Shannon Louise Glinski, Defendants.

Case No. 05-20146-TLM, Adversary Case No. 05-07011-TLM.United States Bankruptcy Court, D. Idaho.
June 30, 2005

SUMMARY ORDER RE: REQUEST TO DISMISS COMPLAINT
TERRY MYERS, Bankruptcy Judge

The above named Plaintiff, C.J. L. Estates, LLC (“Plaintiff”), filed a complaint on May 25, 2005, commencing the instant adversary proceeding.[1] Plaintiff’s complaint appears to seek relief in the nature of denial of the discharge of chapter 7 Debtors and Defendants, Gregory and Shannon Glinski (“Defendants”), under § 727(a) of the Bankruptcy Code[2] as well as certain other relief.

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Plaintiff’s complaint is signed and its cause advanced by Christopher J. Larsen, who the adversary proceeding cover sheet identifies as the President of Plaintiff. It appears that Mr. Larsen is not an attorney licensed in Idaho much less one admitted to practice before this Court. Accord, Doc. No. 5 at 1 (admitting Mr. Larsen is not an attorney).

Only attorneys may appear for and represent legal entities such as corporations, partnerships, and limited liability companies See LBR 9010.1(e)(3). This action would be subject to dismissal unless an attorney, admitted before this Court, were to appear on behalf of and for Plaintiff.

Plaintiff apparently learned of the need for counsel. On June 6, Plaintiff filed a “Motion to Strike Adversary Proceeding No. 05-07011” (the “Motion”). See Doc. No. 5. The Motion states that obtaining an attorney would not be cost effective for Plaintiff given the matters at issue, and it thus wishes to “strike” this adversary proceeding. Id. The Court views this as a motion “to dismiss.” See Fed.R.Bankr.P. 7041
(incorporating Fed.R.Civ.P. 41). Plaintiff did not set the request for hearing, and instead submitted a proposed form of order to the Court granting its Motion.[3]

No answer has been filed in this adversary proceeding. Ordinarily, that would allow a plaintiff to dismiss voluntarily without an order of the Court. See Fed.R.Civ.P. 41(a)(1)(i), incorporated by Fed.R.Bankr.P. 7041. However, this action seeks to deny a discharge to Defendants, and Fed.R.Bankr.P. 7041 specifically provides that such a complaint may not be

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dismissed at a plaintiff’s request without notice to the U.S. Trustee, the chapter 7 trustee and such other persons as the Court may direct. Id. This command is implemented in this District by LBR 7001.1

The Court concludes that it will treat Plaintiff’s Motion as a motion to dismiss filed under LBR 7001.1(a). The Court will order Plaintiff to file, within ten (10) days of the date of this Summary Order, the “affidavit” required by LBR 7001.1(b), stating whether any consideration was received in connection with the dismissal. Plaintiff will serve the Motion and such affidavit on the U.S. Trustee, the chapter 7 trustee, the Defendants, and their counsel in the chapter 7 case, Milan Miller.[4]
Plaintiff will need to file a certificate of service reflecting the fact service was made.

Such non-Plaintiff parties shall have ten (10) days from the date of Plaintiff’s service within which to file any objection to the dismissal of this adversary proceeding. If no objection is filed (and if the affidavit reflects no consideration was paid Plaintiff in exchange for the dismissal), the Court will enter an order dismissing the adversary proceeding. No relief other than dismissal will be ordered.

[1] The Court has corrected the format of the caption in accord with the Rules and the allegations of the complaint as to Plaintiff’s corporate nature.

[2] See, e.g., Doc. No. 1 at 1; see also adversary proceeding cover sheet.

[3] This Order, while it would grant the request to “strike” the action, also purports to grant other relief, such as finding cause to investigate and ordering the chapter 7 trustee to determine if Defendants told the truth at the § 341(a) meeting and examination and otherwise obeyed the bankruptcy laws. This form of order (among other things) misconstrues the nature of “striking” or dismissing the action. If dismissed, the matter is over, and no relief will be entered on the complaint. Whether some sort of relief is appropriate in the chapter 7 case will depend on the pleadings filed therein. Plaintiff is, of course, free to discuss questions regarding the case with the trustee or the U.S. Trustee.

[4] The Court waives the requirement of LBR 7001.1(d) and will not require service of notice on all creditors and parties in interest in Debtors’ case.

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