Kansas Department of Labor v. Hunter (In re Hunter)
Kansas Department of Labor v. Hunter (In re Hunter)
Opinion of the Court
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Defendant moves to dismiss the instant proceeding under Fed. R. Bank. P. 7012 and Fed. R. Civ. P. 12(b)(4).
VENUE AND JURISDICTION
This Court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C. §§ 157(a) and 1334(a) and (b) and the Amended Standing Order of Reference of the United States District Court for the District of Kansas that exercised authority conferred by 28 U.S.C. § 157(a) to refer to the District’s bankruptcy judges all matters under the Bankruptcy Code and all proceedings arising under the Code or arising in or related to a case under the Code, effective June 24, 2013.
BACKGROUND
On November 23, 2015, the last day to
On November 24, 2015, the Clerk of the Court issued three orders to correct defective pleadings because Plaintiff: (a) did not include the complaint; (b) did not complete the cover sheet; (c) did not complete the summons; and (d) did not pay the 28 U.S.C. § 1930 filing fee.
On November 28, 2015, Plaintiff filed a second request for the issuance of a summons
On December 2, 2015, Plaintiff filed a pleading titled Support Document.
On January 7, 2016, Defendant filed a motion to dismiss under Fed.R.Civ.P. 12(b)(4) and (6) and Fed. R. Bankr.P. 7012.
On January 19, 2016, Plaintiff responded arguing that the Defendant relies on facts that “do not conform to [the] requirement for establishing uncontroverted facts to permit the Court to entertain a fact-based dismissal....”
Nevertheless, Plaintiff feels these failures are not detrimental to its claims because: (a) the Clerk’s orders to correct defective pleadings serve to provide a curative opportunity to bring filings in conformity with applicable rules and should relate back to the November 23, 2015, starting point; (b) any defects were cured because Defendant does not assert that she has not learned of the basis of Plaintiff s complaint or was not actually served;
ANALYSIS
In bankruptcy proceedings, Bankruptcy Rule 4007(a) allows a creditor to commence an adversary proceeding by “fil[ing] a complaint to obtain a determination of the dischargeability of any debt.”
[A] complaint to determine the dis-chargeability of a debt under § 523(c) shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a)_ On motion of a party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivi*869 sion. The motion shall be filed before the time has expired.26
Bankruptcy Rule 4007(c) sets a strict deadline to dispute the discharge-ability of certain debts. The deadline can only be extended for cause, after a hearing, if a motion is filed before the deadline expires. The deadline is strictly enforced. In In re Nondorf, a Kansas Bankruptcy Court dismissed a § 523 complaint filed four minutes late,
Plaintiff unsuccessfully attempted to initiate the instant action on November 23, 2015, by filing two copies of an insufficient cover sheet and an exhibit. A timely filed cover sheet cannot be treated as a substitute for a complaint so as to render a complaint timely.
-Ultimately, Plaintiff filed its § 523 complaint nine days late on December 2, 2015. The 60-day deadline for filing such complaints expired on November 23,
Plaintiff suggests that a late filed complaint relates back to a bungled initial filing.
An amendment to a pleading relates back to the date of the original pleading when: (A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted....
The lynehpin in Fed.R.Civ.P. 15(c)(1) provisions is that all require an initial pleading — something that did not exist in this case until December 2, 2015. An amended pleading may relate back to the date of the original pleading if the claims in the amended pleading “arose out of the conduct, transaction, or occurrence set out .., in the original pleading.”
Plaintiff requests the case not be dismissed to prevent fraud or injustice. This assertion suggests the Court act under its inherent § 105(a) equitable authority. However, § 105(a) does not give this Court authority to extend, the Bankruptcy Rule 4007(c) deadline under these circumstances. Section 105(a) authorizes courts to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.”
CONCLUSION
Counsel failed by waiting until the last business day to attempt an adversary filing. “Prudent lawyers act sooner, so that Murphy’s Law will not undermine a client’s interests.”
IT IS ORDERED that Defendant’s motion to dismiss is granted because Plaintiffs complaint was not timely filed under Fed. R. Bankr.P. 4007(c) and there are no grounds for an extension under Fed. R. Bankr.P. 4007(c) or Fed.R.Civ.P. 15.
IT IS SO ORDERED.
. Doc. 16.
. Plaintiff, State of Kansas Department of Labor, appears by its attorney, Thomas Britt Nichols, Topeka, KS. Defendant, Tanisha Evon Hunter, appears by her attorney, Hilli-ard L. Moore, Lenexa, KS.
.D. Kan. Standing Order No. 13-1, printed in D. Kan. Rules of Practice and Procedure at 168 (March 2016).
. All future statutory references are to the Bankruptcy Code (Code), as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), 11 U.S.C. §§ 101-1532, unless otherwise specifically noted.
. Doc. 1.
. Doc. 3.
. Doc. 4-6.
. Doc. 7.
.Doc. 8.
. Doc. 11.
. Doc. 16. Hereinafter, Fed. R. Bankr.P. is referred to as Bankruptcy Rule.
. Doc. 16, at 2.
. Id. at 3. With the exception of § 523(a)(6), this is the § 523(c) deadline. Fed. R. Bankr.P. 4007(c) and (d).
. Doc. 17, at 1.
. Id. (italics in original). This assertion is misplaced as the option of physically filing papers at the courthouse still exists,
. Id. at 2.
. Id. at 3.
. Id. at 2.
. Id. at 3-4.
. Id. at 4.
. Id. at 4-5.
. Id. at 5.
. Id.
. Fed. R. Bankr.P. 4007(a).
. Fed.R.Civ.P, 3 made applicable to'adversary proceedings by Fed. R. Bankr.P. 7003.
. Fed. R. Bankr.P. 4007(c) (emphasis added). Here, the deadline was November 23, 2015.
. Kennedy Berkley Yarnevich & Williamson, Chid. v. Nondorf (In re Nondorf), 2008 WL 544502 (Bankr.D.Kan. Feb. 27, 2008).
. Pioneer Inv. Servs. Co, v. Brunswick Assocs. Ltd. P’Ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).
. Fed. R. bankr. P. 9006(b)(3). See also In re Tench, 2016 WL 2858792 (6th Cir. BAP May 11, 2016) (disallowing excusable neglect as grounds to have a claim filed after the bar date in Chapter 13 cases).
. 6 Bankr.Serv. L.Ed. § 54:195 (Apr. 2016); KBHS Broadcasting Co., Inc. v. Sanders (In re Bozeman), 226 B.R. 627, 632 (9th Cir. BAP 1998) (adversary cover sheet filed before the final deadline for filing dischargeability complaints does not constitute pleading); Schmidt v. Goscicki (In re Goscicki), 207 B.R. 893, 896 (9th Cir. BAP 1997) (adversary cover sheet insufficient to operate as complaint); Wood v. Jasperson (In re Jasperson), 116 B.R. 740, 745 (Bankr.S.D.Cal. 1990) (adversary cover sheet is not a substitute for required pleadings).
. Fed.R.Civ.P. 9 made applicable to adversary proceedings through Fed. R. Bankr.P. 7009.
. Doc. 1-1, at 1.
. In re Yohler, 127 B.R. 492, 493 (Bankr.S.D.Fla. 1991) (citing Byrd v. Alton, 837 F.2d 457, 459 (11th Cir. 1988); Neeley v, Murchison, 815 F.2d 345 (5th Cir. 1987); Loma Linda Univ. Med. Ctr. v. Neese (In re Neese), 87 B.R. 609 (9th Cir. BAP 1988); Garza v. Remund (In re Remund), 109 B.R. 492 (Bankr.M.D.Fla. 1990); In re Cintron, 101 B.R. 785 (Bankr.M.D.Fla. 1989)).
. Cosper v. Frederick, 73 B.R. 636 (Bankr.N.D.Fla. 1986).
. Plaintiff cites to Pfeiffer v. Rand (In re Rand), 144 B.R. 253 (Bankr.S.D.N.Y. 1992), and Gamble v. Mendenhall (In re Mendenhall), 2014 WL 4494811 (Bankr.S.D.Ala. Sept. 10, 2014). Doc. 17, at 3-4. However, these cases involve pro se creditors and are factually distinguishable.
. Fed.R.Civ.P. 15(c)(1).
. § 105(a).
. In re Mackinder-Manous, 2015 WL 790883, at *6 (Bankr.E.D.Ky. Feb. 24, 2015) (citing Law v. Siegel, — U.S. -, 134 S.Ct. 1188, 1194, 188 L.Ed.2d 146 (2014)).
. Johnson v. McBride, 381 F.3d 587, 589 (7th Cir. 2004).
Reference
- Full Case Name
- IN RE: Tanisha Evon HUNTER, Debtor. State of Kansas Department of Labor v. Tanisha Evon Hunter
- Cited By
- 1 case
- Status
- Published