Case No. 05-42189, Adversary No. 05-5004.United States Bankruptcy Court, N.D. Georgia, Rome Division.
October 31, 2006
RULE 16(B) SCHEDULING ORDER; ORDER WITH REGARD TO DISCOVERY, ISSUES TO BE RETRIED, AND DEADLINES FOR FILING CERTAIN MOTIONS AND BRIEFS; AND NOTICE OF TRIAL
PAUL BONAPFEL, Bankruptcy Judge
The Plaintiff commenced this adversary proceeding, pro se, on September 8, 2005 [1].[1] An amended complaint was filed on December 15, 2005 [9]. It seeks determinations that certain alleged debts of the Debtors are excepted from discharge under 11 U.S.C. § 523(a). See Order entered November 16, 2005 [7]. The Debtors answered through counsel [6, 10], but they are now proceeding pro se [65, 72].
By Order entered on August 23, 2006 [23], the Court set a status conference for October 18, 2006, to consider discovery matters, case management, and scheduling. Having conducted
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the hearing, the Court enters this Order.
I. BACKGROUND
This adversary proceeding came before the Court for a hearing with regard to a variety of disputes and for a status conference on June 21, 2006. Following the hearing and status conference, the Court on July 5, 2006, entered several orders regarding matters in dispute [45-50] and an order staying further proceedings pending developments in other litigation and closing this proceeding for administrative purposes (the “Stay Order”) [51]. The Stay Order provided for the reopening of this proceeding by any party, as of right, upon request. The Stay Order further provided that, upon reopening, the parties would not be permitted to engage in discovery until the Court had conducted a status conference, supervised the exchange of information as contemplated by FED. R. CIV. P. 26(a), applicable under FED. R. BANKR. P. 7026, and discovery planning and case management as contemplated by Rule 26(f), and entered a scheduling order as contemplated by FED. R. CIV. P. 16 applicable under FED. R. BANKR. P. 7016.
On August 23, 2006, on the Plaintiff’s motion to reopen [60], the Court entered an Order that reopened the proceeding. [64] In accordance with the Stay Order, the August 23 Order scheduled a status conference for October 18, 2006 to permit the Court to supervise the exchange of information under Rule 26(a) and discovery planning and case management, as contemplated by Rule 26(f), and to consider scheduling matters, as contemplated by Rule 16.
The Plaintiff did not attend the status conference. The Debtors did. The failure of the Plaintiff to attend the status conference as directed by the Court could constitute grounds for sanctions or dismissal of the complaint for lack of prosecution. The dismissal of the Plaintiff’s complaint, even if without prejudice, would result in no timely determination by this Court that
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debts are excepted from discharge under § 523(a)(2), (4), and (6). Because of the operation of 11 U.S.C. § 523(c), any such debts would be discharged. Thus, dismissal of the complaint would, effectively, be a prejudicial dismissal.
The Court determined that proceeding with the status conference is a more appropriate procedure than dismissal of the complaint. The Plaintiff, of course, had notice of the status conference and the opportunity to be heard. His voluntary absence, therefore, did not prevent the Court from proceeding, and was not improper ex parte communication. This Order, therefore, is entered after the Plaintiff had notice and an opportunity to be heard as required by due process and the Federal Rules of Bankruptcy Procedure.
II. DISPOSITION OF CHILD SUPPORT ISSUES
The Court observed at the status conference that some of the Plaintiff’s claims relate to alleged child support that he claims is due. Debtors contend no child support is owed. If child support is owed, it is not dischargeable. 11 U.S.C. § 523(a)(5).[2]
If no child support is due, there is no debt to be discharged. A creditor is not required to seek determination of dischargeability of child support in a bankruptcy court. 11 U.S.C. § 523(c). Because the only dispute here is whether child support is owed, no dischargeability issue exists. In these circumstances, there is no need for this Court to proceed further with regard to the child support issues. This Court need not, and will not, determine whether any child support is, or is not, actually due. This dispute is best determined in accordance with appropriate state law procedures.
To the extent the Plaintiff alleges that child support is due under the terms of a court order or agreement between the parties, that claim is excepted from discharge. Unless somehow
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material to other issues in the case, therefore, the amount of child support to which Mrs. Anderson has paid, or the amount to which Mr. Hunsucker is entitled, are not relevant to any issues in this case.
III. SPECIFICATION OF GROUNDS FOR EXCEPTION TO DISCHARGE
One purpose of the status conference was to determine, and if possible narrow, the issues to be tried. The complaint does not specify the statutory grounds in § 523(a) for an exception to discharge. In this regard, it appears that the only provision of § 523(a) that applies to the allegations made by the Plaintiff is § 523(a)(6). Section 523(a)(6) provides an exception for the discharge of a debt if it is for “willful and malicious injury by the debtor to another entity or to the property of another entity.” Because the Plaintiff did not attend the status conference, it would be appropriate for the Court to limit the Plaintiff to asserting an exception to discharge under 11 U.S.C. § 523(a)(6). Out of an abundance of caution, however, the Court will permit the Plaintiff to seek to assert other grounds for an exception to discharge by the filing of a motion that specifies any other such grounds within 20 days from the date of entry of this Order. The Debtors may respond within 10 days thereafter. If a motion is filed, the Court will consider it and then enter an Order determining which additional grounds for an exception to discharge, if any, the Plaintiff will be permitted to assert.
IV. LIMITATION OF ISSUES TO DISCHARGEABILITY
Although this Court has jurisdiction to enter a money judgment on the claims that the Plaintiff asserts, Sasson v. Sokoloff (In re Sasson), 424 F.3d 864 (9th Cir. 2005), the Plaintiff does not appear to want this Court to adjudicate his claims in their entirety. In any event, it appears to the Court that it should exercise its discretion under 28 U.S.C. § 1334(c)(1) to decline to exercise any jurisdiction that it may have with regard to entry of a money judgment on the
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Plaintiff’s claims, if the Court determines that they are excepted from discharge. The Court will abstain from determining any issues other than dischargeability unless, within 20 days from the date of entry of this Order, the Plaintiff files a motion requesting that all issues be determined in this proceeding. The Debtors will have 10 days to respond if they wish to do so. The Court will then consider the Motion, if filed, and any response, if filed.
Limitation of the issues to dischargeability will significantly narrow the issues in this proceeding because the question of the amount of damages, if any, will not be before the Court. The issues to be tried will, therefore, be limited to whether the Defendants engaged in willful and malicious conduct and whether any such conduct caused damage to the Plaintiff or his property with the meaning of § 523(a)(6), unless (1) the Court permits the Plaintiff to assert other grounds for excepting the claims from discharge, in accordance with Part III; or (2) the Court grants a motion by the Plaintiff to hear all issues relating to his claims in this proceeding.
V. DISCOVERY AND EXPERT TESTIMONY
The parties did not comply with the requirements of Rule 26(a)(1) with regard to initial disclosures or of Rule 26(f) with regard to a discovery conference and submission of a discovery plan. Under BLR 7016-1, the failure of the parties to comply with these requirements is deemed to be a stipulation that the parties have agreed to waive initial disclosures otherwise required by Rule 26(a)(1), that no departures from the standard discovery provisions of the Federal Rules of Civil Procedure and this Court’s Local Rules are required, and that the parties agree to a Scheduling Order in accordance with BLR 7016-1(b). Among other things, BLR 7016-1(b) provides that, unless otherwise ordered, discovery must be completed within 90 days after the appearance of the first defendant by answer or motion. Under this rule, discovery in this
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adversary proceeding closed on January 18, 2006.[3] The Court notes that discovery closed prior to the service of discovery requests by the Plaintiff on February 6 [11] and his initiation of third party discovery on April 26, 2006 [17].
Nevertheless, the parties at the June status conference, and the Court in the Stay Order, contemplated that discovery would be permitted when the case was reopened. The October 18 status conference was scheduled to permit the Court to supervise the exchange of information as contemplated by Rule 26(a) and a discovery and scheduling conference as contemplated by Rule 26(f).
The Court thus took up these matters at the October 18 status conference. The Debtors do not request any further discovery. The Court deems the Plaintiff’s failure to attend the status conference, and the Plaintiff’s failure to provide any information as required in paragraphs 1 and 2 of the August 23 Order, to constitute a waiver of any right to discovery, or alternatively, the absence of a showing of any need for discovery. A primary purpose of the status conference was for the parties to discuss with the Court the need for discovery and how it should proceed. Because the Plaintiff failed to show any need for discovery, and the Debtors did not desire any further discovery, the Court determined that it is appropriate to close discovery in this proceeding. Because discovery is thus closed, it is not necessary to proceed with the exchange of information concerning identification of witnesses and documents relating to discoverable information as set forth in paragraphs 1 and 2 on page 11 of the Court’s August 23 Order.
Paragraph 3 on page 12 of the August 23 Order required the Plaintiff to be prepared to
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provide a computation of his damages. If the issue of the amount of damages is removed from this proceeding pursuant to Part IV, the computation of damages will not be in issue. If the Plaintiff files a motion to include the issue of damages in this proceeding, the Plaintiff shall attach to the motion an identification of the damages that he claims, the amount of them, and how they are computed. If the Plaintiff fails to do so, the Court will not determine the amount of damages.
In paragraph 4 on page 12 of the August 23 Order, the Court directed the disclosure of information with regard to expert testimony. The Plaintiff’s failure to comply with this direction could constitute a ground for barring his use of expert testimony. The Court declines to impose a remedy that, conceivably, could seriously impair the ability of the Plaintiff to put on his case. Therefore, the Court will permit the Plaintiff to introduce expert testimony for cause shown. If Plaintiff desires to introduce expert testimony, he must file a motion to do so within 30 days from the entry of this Order. The Debtors may respond within 10 days thereafter if they choose. The motion must be accompanied by information required to be disclosed under Rule 26(b)(2), including but not limited to, a report containing a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the expert informing the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at a trial or by deposition, within the preceding four years. If the Court grants a motion of the Plaintiff to use expert testimony, the Court at that time will give the Debtors an opportunity to seek to introduce expert testimony under appropriate requirements.
VI. JURY TRIAL ISSUES
The amended complaint contains a demand for jury trial. In addition, a separate jury trial
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demand was filed on February 10, 2006 [12]. There is a question as to whether the jury trial demand is timely because it was not filed within 10 days after the original answer to the complaint filed on October 20, 2005. Under FED. R. CIV. P. 38(b) applicable under FED. R. BANKR. P. 9015(a), a demand for a jury trial on any issue triable of right by a jury must be made within 10 days after service of the last pleading directed to such issue. Furthermore, there is a question as to whether the Plaintiff is entitled to a jury trial on the dischargeability issues, that may be the only issues to be tried.
It does not appear to the Court that the Plaintiff is entitled to a jury trial if the issues are limited to these as Part IV suggests. This issue needs to be determined promptly. Accordingly, the Plaintiff directed to file a brief in support of his demand for a jury trial with regard to the issues to be tried in this proceeding within 20 days from the date of this Order. Once the Court determines whether the Plaintiff is entitled to a jury trial, the Court will direct such further proceedings as are appropriate.
VII. NOTICE OF TRIAL
A trial of this matter will be conducted beginning at 10:00 o’clock a.m. on the 22nd day of February, 2007 in Courtroom 326, Federal Building, 600 East First Street, Rome, Georgia, unless: (1) the Plaintiff files motions with regard to expert testimony, the assertion of additional grounds for non-dischargeability, or determination of damages in this proceeding that the Court grants and that require that the trial be postponed; or (2) the Court determines that the Plaintiff is entitled to a jury trial.
The Clerk is directed to mail copies of this Order to the persons shown on the Distribution List.
IT IS SO ORDERED.
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