IN RE CINI Case No. 10-62715-13, Adv No. 11-00007.
In re: ROBIN JEAN LYON CINI, Debtor. ROBIN JEAN LYON CINI, Plaintiff. v. VISCOMI & GERSH, PLLP, PETER F. CARROLL, JOHN DARREN COGAR, SUSANNE J. COGAR, BLUE CROSS AND BLUE SHIELD OF MONTANA, INC., NIGEL CINI, ROBIN JEAN LYON CINI, PERSONAL REPRESENTATIVE OF THE ESTATE OF HANNA CINI, and ROBIN JEAN LYON CINI, CONSERVATOR FOR BAYDEN CINI, Defendants.
United States Bankruptcy Court, D. Montana.
May 27, 2011.
MEMORANDUM OF DECISION
RALPH B. KIRSCHER, Bankruptcy Judge
Pending in this adversary proceeding are: Plaintiff's motion for partial summary judgment (Docket No. 16); and Defendant Peter F. Carroll's ("Carroll") motion to dismiss Counts I, III and IV of the 1
This Court has exclusive jurisdiction of the above-captioned Chapter 7 bankruptcy case under 28 U.S.C. § 1334(a). Plaintiff's amended complaint (Dkt. 7) avers claims for relief including but not limited to: To determine the validity, priority or extent of liens, claims and interests in claims, recoveries and proceeds from litigation, a probate estate of the Plaintiff's deceased daughter Hanna Cini ("Hanna") and settlement proceeds (Count I); determination of competing post-petition judicial liens of Carroll and Plaintiff (Count III); and for civil contempt for violation of the stay under 11 U.S.C. § 362 against Carroll and co-Defendants Cogar (Count IV). Proceedings to determine the validity, extent or priority of liens, to turn over property of the estate, affecting the liquidation of assets of the estate or the adjustment of the debtor-creditor relationship, all are core proceedings under 28 U.S.C. § 157(b)(2).
Carroll's motion to dismiss, and his answer to the amended complaint, contend that this Court lacks subject matter jurisdiction of the $5,840.81 and that Counts I, III, and IV should be dismissed. Cogars filed a response (Dkt. 25) conceding Plaintiff's motion for partial summary judgment, and stating that Plaintiff is entitled to the $5,840.81 in Viscomi's trust account and that such funds are property of the estate.
After Plaintiff filed her amended complaint, Carroll filed his motion to dismiss Counts I, III and IV. Carroll's motion contends that this Court lacks subject matter jurisdiction of the $5,840.81 because those funds are property of Nigel, not property of the estate, and that the Plaintiff did not list an interest in the $5,840.81 in her bankruptcy schedules. Carroll's motion includes the 14-day notice of the opportunity to respond and request a hearing required under Montana Bankruptcy Rule ("Mont. LBR") 9013-1(e). Plaintiff filed a response in opposition, combined with
The SOUF (Dkt. 17) at pages 2-3 sets forth the following facts:
Attached to the SOUF are the affidavits of Michael Viscomi and Carroll referenced in the above facts. Those affidavits also were admitted into evidence as Ex. 3 (Viscomi) and Ex. 4 (Carroll).
Summary judgment in this Court is governed by Federal Rules of Bankruptcy Procedure 7056 and by Mont. LBR 7056-1. Mont. LBR 7056-1(a)(2) requires that an opposition to a motion for summary judgment must be filed within fourteen (14) days after the motion is served, and a separate "Statement of Genuine Issues" setting forth specific facts which preclude summary judgment in favor of the moving party, must be filed by the party opposing the motion together with an opposition brief. Rule 7056-1(a)(3) provides: "All material facts in the moving party's Statement of Uncontroverted Facts are deemed to be admitted unless controverted by a Statement of Genuine Issues filed by the opposing party."
Plaintiff's motion for summary judgment was served on Carroll electronically by the Court's CM/ECF system on March 17, 2011. In addition to Mont. LBR 7056-1(a)(2), Plaintiff's motion includes the notice provided under LBR 9013-1(e) granting Carroll 14 days to respond and request a hearing, and advising that "if no objections are timely filed, the Court may grant the relief requested as a failure to respond by any entity shall be deemed an admission that the relief requested should be granted." Carroll did not file an objection to Plaintiff's motion within 14 days. At the hearing Carroll admitted that he did not file a response. He explained that he did not think that he had to respond until his motion to dismiss was decided. By operation of LBR 9013-1(f), "a failure to respond by any entity shall be deemed an admission that the relief requested should be granted."
In addition, Carroll failed to file a Statement of Genuine Issues required under Mont. LBR 7056-1(a)(2). The effect of Carroll's failure to file a Statement of Genuine Issues is provided at Mont. LBR 7056-1(a)(3): "All material facts in the moving party's Statement of Uncontroverted Facts are deemed to be admitted unless controverted by a Statement of Genuine Issues filed by the opposing party." Therefore, by operation of LBR 7056-1(a)(3), all material facts in the Plaintiff's SOUF which are quoted above are deemed admitted. Specifically, Fact No. 6 which states, according to Viscomi's and Carroll's affidavits, that the $5,840.81 is property of the estate, is deemed admitted. Likewise Fact No. 7, which states that the $5,840.81 is protected by the automatic stay of § 362(a), is deemed admitted.
Carroll's admission that the $5,840.81 is property of the estate is corroborated by his affidavit admitted into evidence without objection as Ex. 4, on page 3,
I. Summary Judgment.
Summary judgment is governed by FED. R. BANKR. P. 7056. Rule 7056, incorporating FED. R. CIV. P. 56(c), states that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." "The proponent of a summary judgment motion bears a heavy burden to show that there are no disputed facts warranting disposition of the case on the law without trial." Younie v. Gonya (In re Younie), 211 B.R. 367, 373 (9
When seeking summary judgment, the moving party must initially identify those portions of the record before the Court which it believes establish an absence of material fact. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987). If the moving party adequately carries its burden, the party opposing summary judgment must then "set forth specific facts showing that there is a genuine issue for trial." Kaiser Cement Corp. v. Fischback & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir. 1986), cert. denied, 469 U.S. 949 (1986); FED. R. CIV. P. 56(e). See also Frederick S. Wyle Prof'l. Corp. v. Texaco, Inc., 764 F.2d 604, 608 (9th Cir. 1985) ("the opponent must affirmatively show that a material issue of fact remains in dispute"). That is, the opponent cannot assert the "mere existence of some alleged factual dispute between the parties." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Moreover, "[a] party opposing summary judgment may not simply question the credibility of the movant to foreclose summary judgment." Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9
To demonstrate that a genuine factual issue exists, the objector must produce affidavits which are based on personal knowledge and the facts set forth therein must be admissible into evidence. Aquaslide, 85 B.R. at 547. All reasonable doubt as to the existence of genuine issues of material fact must be resolved against the moving party. Liberty Lobby, 477 U.S. at 247-48, 106 S.Ct. at 2509. If a rational trier of fact might resolve disputes raised during summary judgment proceedings in favor of the nonmoving party, summary judgment must be denied. T.W. Elec. Serv., 809 F.2d at 630; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 202 (1986). Thus, the Court's ultimate inquiry is to determine whether the "specific facts" set forth by the nonmoving party, viewed along with the undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence. T.W. Elec. Serv., 809 F.2d at 631. In the absence of any disputed material facts, the inquiry shifts to whether the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53.
Plaintiff has satisfied her initial burden of proof of demonstrating that there is no genuine issue of material fact. Carroll did not respond to Plaintiff's motion, and did not file a Statement of Genuine Issues. His argument that he did not think he had to until his motion to dismiss was decided is unavailing. Carroll is a licensed attorney. Although he is pro se, in the Ninth Circuit pro se litigants are not excused from compliance with the rules. Warrick v. Birdsell, 278 B.R. 182, 187 (9
Carroll was aware enough of this Court's local rules to include the 14-day notice required under LBR 9013-1(e) in his motion. His failure to respond to the SOUF with a statement of genuine issues, subjects him to the admissions which arise by operation of LBR 7056-1(a)(3) and LBR 9013-1(f). Accordingly, the Court finds that Plaintiff has satisfied her initial burden of demonstrating that there is no genuine issue of material fact, and Carroll has not made a showing of any disputed material facts. The inquiry shifts to whether the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53.
Plaintiff argues that the $5,840.81 is property of the estate under 11 U.S.C. § 541(a), and that it is protected by the automatic stay under § 362(a)(3). Carroll argues that the $5,840.81 is not property of the estate because it was not listed in the Plaintiff's Schedules. A recent Ninth Circuit Bankruptcy Appellate ("BAP") decision explains:
Samson v. Western Capital Partners, LLC (In re Blixseth), ___ B.R. ___, 2011 WL ____ (9
Based on that authority and the broad scope of property of the estate under § 541(a), Carroll's and Viscomi's admissions in their affidavits (Ex. 3 and 4), and Carroll's admissions by operation of this Court's Local Rules, the Court concludes that Plaintiff is entitled to partial summary judgment as a matter of law under Count I that the $5,840.81 in Viscomi's trust account is property of the estate.
II. Carroll's Rule 12(b)(1) Motion to Dismiss.
Carroll's motion to dismiss contends that this Court lacks subject matter jurisdiction over the $5,840.81. Plaintiff objects that the $5,840.81 is property of the estate, which the Court established in this case above.
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). Rule 12(b)(1) allows litigants to seek the dismissal of an action from federal court for lack of subject matter jurisdiction. It is to be presumed that a cause lies outside this Court's limited jurisdiction, and the burden of establishing jurisdiction rests upon the party asserting jurisdiction. Id. (citing cases); see also In re Elias, 215 B.R. 600, 604 (9
The Ninth Circuit set forth a thorough analysis of bankruptcy court jurisdiction In re Ray, 624 F.3d 1124, 1130-31 (9
624 F.3d at 1130.
The amended complaint (Dkt. 7) includes a paragraph 1 at the top of page 3 averring that this Court has jurisdiction of this matter under § 1334 "based on this proceeding arising from the above Chapter 13 case and concerns property of the estate." Paragraph 3 avers that this is a core proceeding under 28 U.S.C. § 157(b)(2)(A).
The Ninth Circuit explained:
Ray, 624 F.3d at 1131.
Count I, upon which Plaintiff's motion for partial summary judgment is based, avers a claim to determine the validity, and priority of the Defendants' liens, claims or interests in property of the estate. Such is an enumerated core proceeding under § 157(b)(2)(K). The fact established above that the $5,840.81 is property of the estate is by operation of § 541(a) of the Bankruptcy Code and, as such, this proceeding could only arise in the context of a bankruptcy case and therefore must be a core proceeding. Id., quoting Gruntz.
In sum, the $5,840.81 is property of the estate. The Court concludes that the Plaintiff has satisfied her burden of establishing subject matter jurisdiction, and Carroll's motion to dismiss will be denied.
CONCLUSIONS OF LAW
1. This Court has jurisdiction of this adversary proceeding under 28 U.S.C. § 1334(b).
2. Count I is a core proceeding under 28 U.S.C. § 157(b)(2)(K).
3. Defendant Peter Carroll failed to comply with Mont. LBR 7056-1(a)(2) by failing to file a "Statement of Genuine Issues." Pursuant to LBR 7056-1(a)(3) all material facts in the Plaintiff's Statement of Uncontroverted Facts are deemed admitted.
4. Plaintiff satisfied her burden of proof under FED. R. BANKR. P. 7056, incorporating FED. R. CIV. P. 56(c) of showing that no genuine issue of material fact exists with respect to its contentions under Count I, and that Plaintiff is entitled to summary judgment as a matter of law that $5,840.81 in funds held in the trust account of Defendant Viscomi & Gersh, PLLP, is property of the estate under 11 U.S.C. § 541(a).
5. Plaintiff satisfied her burden under Rule 12(b)(1) of establishing that this Court does not lack subject matter jurisdiction over the $5,840.81.
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