Opinion
Case No. 02-30333-BKC-SHF, Adv. No. 02-3302-BKC-SHF-A.
November 30, 2006
MEMORANDUM ORDER GRANTING REQUEST FOR ENTRY OF FINAL JUDGMENT
THIS MATTER came before the Court on April 8, 2004, for hearings on the Emergency Motion by the Plaintiff to Extend Time for the Plaintiff to File Written Opening Statement, Bound and Premarked Exhibits and Exhibit Register, and Opening Objections (C.P. 71), the Motion by the Plaintiff to Shorten Time for the Defendants to Respond to Discovery (C.P. 69); and Plaintiff's Emergency Motion in Limine (C.P. 73). The Court having reviewed the various Motions, the Affidavit of Plaintiff's counsel attesting to the Defendants' non-compliance with this Court's Order which denied reconsideration and clarification and which set forth discovery and disclosure requirements (C.P. 72), the Renewed Motion by the Plaintiff for Summary Judgment (C.P. 70), and the adversary case file; considered the argument and representations of counsel; and for the reasons set forth herein, a separate Final Judgment granting the relief sought by the Plaintiff will be entered in this adversary case.
This adversary case was commenced on October 16, 2002, through the Plaintiff's filing of a Complaint seeking a determination that the Corporate Defendants, Home Health Care Agency, Inc., and Home Is Where The Heart Is, Inc., d/b/a Home Health Care Agency, were alter-egos of the Defendant and Debtor, Patricia Oliver. The Complaint further seeks to avoid fraudulent and preferential transfers made by the Debtor and the Corporate Defendants of various interest which they held in a Home Health Care business, and seeks to avoid various transfers made by the Debtor to the Defendant, Julian Peters. The Complaint also seeks turnover of the fraudulently transferred assets and the assets of the alter-egos, and the seeks to deny the Debtor's discharge. The final Count of the Complaint is a request for Permanent Injunction, which was initially pursued by the Plaintiff through an Application for a Temporary Restraining Order which was filed contemporaneously with the Complaint.
At the time of the filing of the Complaint, this Court entered its standard Order Setting Filing and Disclosure Requirements for Pretrial and Trial which incorporated the disclosure requirements contained in Federal Rule of Civil Procedure 26 and Federal Rule of Bankruptcy Procedure 7026. Specifically, the parties were directed to disclose those witnesses and documents which they believed were relevant to these proceedings and which would be used in connection therewith, at least thirty (30) days preceding the Pretrial Conference. The Pretrial Conference was initially scheduled for January 7, 2003.
In connection with the Plaintiff's Application for a Temporary Restraining Order, this Court conducted an Evidentiary Hearing on the Request on December 9, 2002. The Defendants disclosed certain generic descriptions of documents and various witnesses whom they intended to rely upon prior to the Evidentiary Hearing on the Temporary Restraining Order Application. At the hearing, the Court considered the testimony of Patricia Dzikowski, the Chapter 7 Trustee in this case, along with the testimony offered by the Defendants. The Defendants offered the testimony of William Schaefer, Julian Peters, Daphne Burgan, Barbara Browning, Carmen Cockerham, Patricia Jones, and the Debtor, Patricia Oliver. The Transcript of that Evidentiary Hearing has been filed in this adversary case at (C.P. 76). From the Court's consideration of the evidence presented at the December 9, 2002 hearing on the Application for a Temporary Restraining Order, the Court entered an Order denying the Plaintiff's request, based in large part upon the Plaintiff's inability to demonstrate irreparable harm which would be suffered by the Plaintiff if the Temporary Restraining Order was not entered, particularly since the Pretrial Conference in the case was scheduled for less than thirty (30) days thereafter.
The Court did note that although the Application for a Temporary Restraining Order was being denied, that based upon the evidence presented, it was apparent that the Plaintiff would be entitled to Judgment based upon the evidence to date. The Defendants were advised to present and bring forth documentation to support any defenses they may have.
The Defendants failed to disclose any additional documentation or witnesses which it intended to rely upon in this matter, and on July 15, 2003, the Plaintiff moved for Summary Judgment (C.P. 53). The Court entered its customary Order Setting a Briefing Schedule on the Motion for Summary Judgment (C.P. 54). Apparently, as a result of some dispute as between the parties, a Joint Stipulation of Undisputed Facts was not submitted as required, pursuant to the Scheduling Order. By Motion, dated September 15, 2003 (C.P. 62), the Plaintiff moved to compel the Defendants to execute the Joint Stipulation of Undisputed Facts or to otherwise treat the Pretrial Order, which had previously been agreed to by the parties (C.P. 51), as the Joint Factual Stipulation. The Defendants objected to the Plaintiff's Motion and by Order dated March 10, 2004, the Motion for Summary Judgment by the Plaintiff, was denied (C.P. 65). At that time, the Court likewise scheduled the matter for Trial on April 12, 2004, before a visiting Judge (C.P. 65).
The Plaintiff then moved for clarification and reconsideration of the Order Denying Summary Judgment, based upon the fact that the Court had previously considered all of the documentary evidence and witness testimony at the Evidentiary Hearing on the Application for Temporary Restraining Order. The Defendants failed to disclose any witnesses or documents whatsoever, with respect to the Trial in this adversary case. The only disclosure which has been made by the Defendants in connection with this case is that which was submitted prior to and in connection with the Evidentiary Hearing on the Temporary Restraining Order.
As the Defendants have failed to disclose any witnesses or documents whatsoever, with respect with this Trial and since under the most liberal construction of this Court's Order Setting Filing and Disclosure Requirements for Pretrial and Trial, and the disclosure requirements set forth in Federal Rule of Civil Procedure 26 and Federal Rule of Bankruptcy Procedure 7026, the Defendants would be limited to presenting the documentary evidence and the witness testimony which the Court had previously considered at the December 9, 2002 Evidentiary Hearing on the Application for Temporary Restraining Order.
The Court conducted a hearing on March 30, 2004, on the Plaintiff's Motion for Clarification and Reconsideration. At that hearing, the Court denied the Plaintiff's Motion for Clarification and Reconsideration, but did give the Defendants one (1) final opportunity to disclosure additional witnesses and exhibits which they intended to rely upon at the Trial in this adversary case. Disclosure of the witnesses and exhibits was to occur on or before April 2, 2004. The Defendants were further instructed to provide copies of the exhibits which were intended to be relied upon, to the Plaintiff's counsel by hand delivery on or before April 2, 2004. The Court further provided that the Defendants' failure to comply with this disclosure of the witnesses and documents requirement would result, upon the Plaintiff's filing of an Affidavit of Non-Compliance, with this Court entering a Final Judgment in favor of the Plaintiff. The Court further ruled that this ruling was without prejudice to the Plaintiff renewing its Motion for Summary Judgment at the Calendar Call during the Trial week based upon the filing of the original Transcript from the December 9, 2002 Evidentiary Hearing which has subsequently been filed with the Court, at (C.P. 76).
On April 2, 2004, the Defendants apparently filed and served a Witness and Exhibit List which purports to reflect the documents and witnesses which the Defendants intend to rely upon at the Trial in this adversary case. The witnesses listed are Patricia Oliver, Julian Peters, and William Schaefer, all of whom have previously testified before this Court in connection with the Plaintiff's Application for a Temporary Restraining Order. The Exhibit listing which the Defendants filed does not comply with this Court's prior Order as to the specificity required for purposes of Trial. The Exhibit List filed by the Plaintiff (C.P. 68) is in the nature of a general disclosure of all documentation within certain specified groups. Such a disclosure does not comply with the requirements of Rule 26 of the Federal Rules of Civil Procedure and Rule 7026 of the Federal Rules of Bankruptcy Procedure. Furthermore, the Defendants' disclosure fails to comply with the requirement established by this Court, giving the Defendants' one (1) last opportunity to cure their failure to disclose witnesses and documents previously. As noted in the Affidavit of Plaintiff's counsel, none of the Exhibits which the Defendants have reflected an intention to use at the Trial have been provided. None of the Witness statements for the various parties listed in the disclosure have been provided. In short, the Defendants have failed to disclose any additional information, documentation, witnesses or evidence, which they will be offering at the Trial in this adversary case. Under the most liberal construction of the Federal Rules of Civil Procedure, Federal Rule of Bankruptcy Procedure, and this Court's prior Orders, the Defendants would be limited to offering that evidence which was previously offered at the December 9, 2002 hearing on the Plaintiff's Application for a Temporary Restraining Order. Based upon the Court's consideration of that evidence, which was previously offered, the Plaintiff is entitled to a Judgment on all counts.
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The Clerk of Court is to provide a copy of this Order to all parties in interest.
RDERED in the Southern District of Florida.