Opinion
MEMORANDUM DECISION
ROBERT S. BARDWIL, Bankruptcy Judge.
On August 13, 2008, Jesse Adrian Wagner, the plaintiff in this adversary proceeding, filed an application for an order directing the California Department of Corrections and Rehabilitation, Sierra Conservation Center, and Warden Ivan C. Clay, to make the plaintiff available to appear by telephone at a status conference in this adversary proceeding on September 3, 2008, at 10:30 a.m. ("the Application"). The plaintiff also states in the Application that "good cause exists to allow debtor [the plaintiff] to appear by telephone."
In his declaration attached to the Application, the plaintiff testifies to his present incarceration, to the financial burden of transporting him to court for the hearing, and to his prior appearances by telephone at an earlier status conference in this adversary proceeding and at the meeting of creditors in his parent bankruptcy case.
The court notes, first, that the status conference in this adversary proceeding is now scheduled for October 9, 2008, at 11:00 a.m., not for September 3, 2008. (A Notice of Rescheduled Status Conference was served by the Clerk's Office on August 11, 2008, and in all likelihood, had not been received by the plaintiff at the time he filed the Application.)
However, there is another hearing presently scheduled for September 3, 2008, at 10:30 a.m. - the motion of Educational Credit Management Corporation to be substituted in as a party in this adversary proceeding ("the Motion" or "the Motion to Substitute"). The plaintiff has filed opposition to the Motion, and it appears he intends to make an appearance at the hearing on the Motion. Thus, the court will construe the Application as a request to appear by telephone at the hearing on the Motion.
The court has issued policies and procedures pursuant to which attorneys and parties are permitted to appear by telephone at most non-evidentiary hearings. These policies and procedures are available from the Clerk's Office and may also be found on the court's website, www.caeb.uscourts.gov, under Court Calendars - Procedural Information. For the convenience of the plaintiff, who the court understands may have no access to the Internet, a copy of the policies and procedures is attached hereto as Exhibit A. Pursuant to these policies and procedures, the plaintiff may appear by telephone at the hearing on the Motion to Substitute. No order is necessary.
The plaintiff's request for an order directing the California Department of Corrections and Rehabilitation, Sierra Conservation Center, and Warden Ivan C. Clay "to make Debtor available by telephone for the hearing" will be denied. The court finds no basis for jurisdiction over the Department, the Center, or the Warden that would allow the court to make such an order.
Instead, the plaintiff may provide the appropriate prison officials with copies of this decision and the attached information and procedures re telephone appearances, so as to facilitate his appearance. The plaintiff will need to take the steps necessary to appear by telephone at the hearing.
Exhibit A
OFFICE OF THE CLERK U.S. BANKRUPTCY COURT EASTERN DISTRICT OF CALIFORNIA (Revised January 30, 2008)
TELEPHONIC COURT APPEARANCE THROUGH COURT CALL CONFERENCE SERVICE
I. POLICIES AND PROCEDURES GOVERNING TELEPHONE APPEARANCES:
Provided they adhere to these policies and procedures, attorneys and parties may appear by telephone in connection with most non-evidentiary hearings. Unless a personal appearance is excused in advance, telephonic appearances are not allowed in the following instances:
1. Initial Chapter 11 Status Conferences, debtor and debtor's counsel must appear in person. Others may appear telephonically.
2. Chapter 11 and 12 Confirmation Hearings.
3. Pretrial Conferences (as distinguished from status conferences and trial setting conferences), trial counsel must appear in person except in the Fresno Division.
4. Trials and Evidentiary Hearings.
5. Any matter designated by the court as requiring a personal appearance.
If the court has issued a tentative ruling or prehearing disposition, each individual who appears telephonically shall have reviewed and shall be familiar with the tentative ruling or prehearing disposition. Failure to comply with this requirement constitutes a waiver of the opportunity to appear telephonically at the hearing.
The deadline for scheduling telephonic appearances (see page 2) is independent of the issuance of tentative rulings and prehearing dispositions. Late scheduling of a telephonic appearance is not justified by the fact that tentative rulings or prehearing dispositions have not been posted on the court's Internet site prior to the deadline for scheduling a telephone appearance.
If an individual who has scheduled a telephonic appearance does not respond to the call of a matter on calendar, the court may pass the matter or may treat the failure to respond as a failure to appear. Scheduling simultaneous telephonic appearances in multiple courts or departments does not excuse a failure to appear when a matter is called on calendar. Individuals making use of the conference call service are cautioned that they do so at their own risk. Hearings generally will not be rescheduled due to missed connections.
II. SCHEDULING A TELEPHONIC APPEARANCE:
You may schedule a telephonic appearance for any division or department by following the telephone or facsimile request instructions outlined below:
By Telephone: Telephone appearances may be arranged by calling Court Call at (866) 582-6878.
By Facsimile: Use the court approved Facsimile Request for Telephonic Appearance Form located under the Calendars section of the court's web site at www.caeb.uscourts.gov and send it to Court Call at its facsimile number (888) 533-2946.
Whether arranged by telephone or by facsimile, the telephone appearance must be arranged 24 hours in advance.