Opinion
Case No. 97-20238-7; Adversary No. 97-6175
May 4, 2001
MEMORANDUM OPINION AND ORDER DISMISSING ADVERSARY PROCEEDING
This matter comes before the Court pursuant to the Renewed Motion to Dismiss filed by Richard Steven Parrin and Constance Anne Parrin ("Defendants").
JURISDICTION
The Court has jurisdiction over this proceeding. 28 U.S.C. § 1334. This is a core proceeding. 28 U.S.C. § 157(b)(2)(I) and (J).
FINDINGS OF FACT
Truserv Corporation, formerly known as Cotter Company ("Plaintiff"), commenced this adversary proceeding by filing its Complaint on August 4, 1997. Following the filing of Defendants' Answer on September 4, 1997, the Court issued its Notice of Pretrial Scheduling Conference, setting it for November 14, 1997. The Court issued its Scheduling Minute Order on November 14, 1997, establishing certain pretrial deadlines in the adversary action, including a deadline of October 15, 1998 for submission of a pretrial order.
Since the filing of its Complaint on August 4, 1997, Plaintiff has filed no further pleadings or any motions in the three and one-half years that this adversary action has been pending. Plaintiff has never submitted its initial disclosure pursuant to Fed.R.Civ.P. 26(a)(1). Discovery is now closed in this case.
At a final pretrial conference on May 5, 2000, the Court directed the parties to submit a joint pretrial order by June 23, 2000. Pursuant to its May 18, 2000 Notice of Hearing, the Court scheduled a further status conference for July 7, 2000. During the two month period from the May 5 status conference to the continued status conference on July 7, Plaintiff did not communicate in any way with Defendants, nor transmit a draft of the pretrial conference order to Defendants for ultimate completion and submission to the Court. Neither Plaintiff nor its counsel appeared at the July 7, 2000 status conference.
Defendants filed their Motion to Dismiss on July 11, 2000. The Court set the Motion to Dismiss for the next announced docket on September 1, 2000. Plaintiff's counsel did not appear and the Court granted the Motion to Dismiss.
On September 15, 2000, Plaintiff filed a motion to reconsider the dismissal, alleging a lack of notice. At a hearing on October 31, 2000, the Court granted relief to Plaintiff because Plaintiff had not received notice due to a change of address, and thereafter entered the Journal Entry on December 20, 2000, which reinstated this adversary proceeding. In the course of the October 31 hearing, the Court directed the submission of the long-absent joint pretrial conference order within 30 days and set a pretrial conference for January 5, 2001. On November 30, 2000, Plaintiff filed its request for an extension until December 8 to submit the pretrial order. The Court granted the request.
Plaintiff's counsel's former address was 12400 W. 62nd Terrace, Suite 202, Shawnee Mission, Kansas 66216. His current address is 11644 West 75th Street, Suite 104, Shawnee, Kansas 66214. He gave a valid change of address to the United States District Court on February 29, 2000. However, this change was not input into the Bankruptcy Court's attorney database. Thus, mail continued to go to counsel's former address. Once the Court was aware of this, the current address was input into the Bankruptcy Court's attorney database.
On or about December 8, Plaintiff's counsel submitted to the Court his draft pretrial conference order without any prior consultation with Defendants' counsel. At the next pretrial conference on January 5, 2001, the Court took up the issue of the draft pretrial conference order. Defendants' counsel requested the Court to allow him sufficient time to review the draft to determine its sufficiency and accuracy. The Court granted the request and directed the parties to provide the Court with a mutually agreeable pretrial conference order by January 9, 2001.
Defendants' counsel undertook a review of the draft pretrial conference order and discovered that the draft constituted a virtually exact copy of the pretrial conference order submitted in the Midwest Bank of Hinsdale Adversary No. 97-6170. However, Plaintiff's adversary proceeding is materially different from the Midwest Bank action in that (a) the factual circumstances are not the same; and (b) the statutory grounds asserted in each adversary are different. Defendants' Renewed Motion to Dismiss sets forth the inaccuracies in detail, and seeks dismissal with prejudice.
Plaintiff's Complaint is based on 11 U.S.C. § 727(a)(3) and (a)(5), and § 523(a)(2)(A) and (a)(6). Adversary No. 97-6170 is based on 11 U.S.C. § 727(a)(2)(A), (a)(3) and (a)(4)(A), and § 523(a)(2)(B) and (a)(4).
In an effort to correct or eliminate the substantial flaws in the Plaintiff's draft and to prepare a mutually agreeable pretrial conference order, Defendants' counsel placed a call to Plaintiff's counsel on January 9, 2001. Upon discovering that Plaintiff's counsel was absent from the office that day, Defendants' counsel sent by fax and by regular mail on January 9, a letter explaining Defendants' objections to the draft and seeking discussion to resolve those objections. The fax and the letter were sent to Plaintiff's counsel's current fax number and current address.
Lacking any response to the January 9 letter, Defendants' counsel sent a follow-up letter by fax and regular mail on January 11. Again, these were sent to the current fax number and address. The failure of the January 9 and January 11 letters to elicit any communication from Plaintiff's counsel prompted a third letter from Defendants' counsel to Plaintiff's counsel's current address, dated January 16, attempting to initiate a dialogue to resolve the problems in the draft Pretrial Conference Order.
On March 7, 2001, Defendants filed their Renewed Motion to Dismiss. The Certificate of Mailing attached to the motion shows that it was mailed to Plaintiff's counsel's former address. On March 30, 2001, the Court entered its Order to Correct Defective Pleading, instructing Defendants to mail the Renewed Motion to Dismiss to counsel for Plaintiff at the correct mailing address. On April 5, 2001, Defendants filed their Certificate of Mailing, certifying that the Renewed Motion to Dismiss was mailed on that day to Plaintiff's counsel at his current address. Plaintiff has not responded to the Renewed Motion to Dismiss.
CONCLUSIONS OF LAW
Despite repeated extensions of deadlines, the Court setting aside a prior order of dismissal, and repeated attempts by Defendants' counsel to communicate with Plaintiff's counsel, Plaintiff has failed to prosecute this case. Since filing the Complaint more than three years ago, Plaintiff has failed to submit a pretrial order that addresses the issues and contentions specific to this action. Plaintiff has now even failed to respond to this Renewed Motion to Dismiss. Based on this sorry record, it is clear that Plaintiff is inept at prosecuting its action or at complying with this Court's orders. Defendants have been prejudiced by Plaintiff subjecting them to this unprosecuted action for over three years.
Dismissal with prejudice is warranted by Rule 7041 of the Federal Rules of Bankruptcy Procedure, which incorporates Rule 41 of the Federal Rules of Civil Procedure, which states:
(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
IT IS THEREFORE ORDERED BY THE COURT that Defendants' Renewed Motion to Dismiss shall be GRANTED.
IT IS FURTHER ORDERED BY THE COURT that this Adversary Proceeding is DISMISSED WITH PREJUDICE.
This Memorandum shall constitute findings of fact and conclusions of law under Rule 7052 of the Federal Rules of Bankruptcy Procedure and Rule 52(a) of the Federal Rules of Civil Procedure. A judgment based on this ruling will be entered on a separate document as required by Rule 9021 of the Federal Rules of Bankruptcy Procedure and Rule 58 of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.