RALPH B. KIRSCHER, Bankruptcy Judge.
In this adversary proceeding the Plaintiff Shane C. Bucher seeks exception from the discharge
This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding to determine dischargeability of particular debts under 28 U.S.C. § 157(b)(2)(I) and § 523(a)(9). This Order contains the Court's findings of fact and conclusions of law pursuant to F.R.B.P. 7052.
Plaintiff filed his amended motion for summary judgment on December 11, 2012, with a supporting amended brief, Anderson's affidavit and exhibits. Within the supporting brief, Dkt. 13, from pages 2 to 7, are Plaintiff's Statements of Undisputed Facts ("SOUF") setting forth the following:
The Defendant filed an objection to Plaintiff's amended motion for summary judgment. However, Defendant did not file a separate, short and concise "Statement of Genuine Issues" setting forth the specific facts which he asserts establish a genuine issue of material fact precluding summary judgment in favor of the moving party, as required by Montana Local Bankruptcy Rule ("Mont. LBR") 7056-1(a)(2). Mont. LBR 7056-1(a)(3) provides: "Facts Admitted. 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." At oral argument the Court asked Defendant's counsel why he did not file a Statement of Genuine Issues as required by Mont. LBR 7056-1(a)(2). Duncan answered that he thought the Defendant would be permitted to offer testimony and exhibits at oral argument. The Court did not allow it.
Ignorance of court rules does not constitute excusable neglect, even if a litigant appears pro se. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997) (quoting Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987)). In Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership ("Pioneer"), 507 U.S. 380, 392, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the United States Supreme Court stated that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect".
Defendant's attorney Duncan has practiced in this bankruptcy court for several years, and knows or should know the local rules. Moreover, a person who has
The Defendant voluntarily selected Duncan as his attorney of record, and he cannot now avoid the consequences of the acts or omissions of his freely-selected attorney
The Complaint seeks exception from Defendant's discharge pursuant to § 523(a)(9). Exceptions to discharge should be strictly construed against an objecting creditor and in favor of a debtor in order to effectuate the fresh start policy afforded by the Bankruptcy Code. Moore v. United States Department of Education, et al., 17 Mont. B.R. 106, 108 (Bankr. D.Mont.1998); In re Klapp, 706 F.2d 998, 999 (9th Cir.1983). The standard of proof for the dischargeability exceptions under § 523(a) is by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991); Donath v. Sage, 15 Mont. B.R. 40, 43 (Bankr.D.Mont.1995).
Section 523(a)(9) excepts from discharge any debt "for death or personal injury caused by the debtor's operation of a motor vehicle, vessel, or aircraft if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance". This statute evidences the clear intent of Congress to prevent drunken drivers from escaping liability by discharging debts in bankruptcy. Stackhouse v. Hudson (In re Hudson), 859 F.2d 1418, 1420 (9th Cir.1988). The Ninth Circuit Bankruptcy Appellate Panel in In re Waag, 418 B.R. 373, 380-81 (9th Cir. BAP 2009) repeated the principle from
In order to except a debt from discharge pursuant to § 523(a)(9) a court must find (1) that a personal injury or death occurred; (2) as a result of a motor vehicle accident; (3) caused from a debtor's operation of a motor vehicle while (4) unlawfully intoxicated by alcohol, a drug or another substance. Tafoya, et al. v. Turner, 15 Mont. B.R. 110, 112 (Bankr. D.Mont.1996). Defendant's objection only contested the fourth element. His pleadings admitted the first three.
Paragraph 1 of Defendant's answers admits paragraph 6 and 9 of the complaint wherein Plaintiff alleged that he was injured as a result of Hughes colliding with Plaintiff while Hughes was operating a motor vehicle; and Hughes entered a guilty plea to the charge of negligent vehicular assault. He further admitted paragraphs 11 and 12 that the state district court ordered Hughes to pay restitution, for which a civil judgment was entered in 2009 in the sum of $29,463.70, and Plaintiff received one restitution check in the amount of $227.43 in 2012.
Only the fourth element was contested by the Defendant in his objection, where he argues that legal intoxication was never proven. However, because Hughes failed to file a statement of genuine issues, by operation of LBR 7056-1(a)(3) Plaintiff's SOUF Fact Nos. 11, 12 and 13 are deemed admitted. Those facts establish that Hughes was observed intoxicated by alcohol immediately after he injured the Plaintiff by two nurses, and his BAC was measured above the legal intoxication limit by the Forensic Science Division of the Montana Department of Justice, and by an independent forensic toxicologist. Defendant argues that these statements are hearsay and inadmissible, and that a trial is required to determine whether he was unlawfully intoxicated. His argument ignores the process of 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 (9th Cir. BAP 1997) (quoting Grzybowski v. Aquaslide `N' Dive Corp. (In re Aquaslide `N' Dive Corp.), 85 B.R. 545, 547 (9th Cir. BAP 1987)).
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. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.1986), cert. denied, 479 U.S. 949, 107 S.Ct. 435, 93 L.Ed.2d 384 (1986); FED.R.CIV.P. 56(e). See also Frederick S. Wyle Prof'l Corp. v.
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 538 (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.
Applying this standard, the Court finds and concludes that Plaintiff satisfied his initial burden to identify those portions of the record which it believes establish an absence of material fact. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d at 630. Defendant's admissions in his answer, and Plaintiff's SOUF listing listed the above-quoted facts, and the accompanying affidavits of persons with personal knowledge to provide foundation for attached exhibits, and expertise and expert reports, satisfy Plaintiff's initial burden. The affidavits which Defendant contends are hearsay are permitted, contemplated, and even required to satisfy the moving party's initial burden.
The burden shifted to the Defendant opposing summary judgment to "set forth specific facts showing that there is a genuine issue for trial." Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d at 1103-04. Defendant failed to satisfy that burden when he failed to file a Statement of Genuine Issues as required by Mont. LBR 7056-1(a)(2).
To demonstrate that a genuine factual issue exists the Defendant was required to 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. Defendant produced no affidavits based on personal knowledge of the facts of the instant adversary proceeding in support of his objection. Defendant argues that a factual disputes exist between the parties regarding whether he was legally intoxicated while operating the motorcycle, but he cannot assert the "mere existence of some alleged factual dispute between the parties." Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48, 106 S.Ct. at 2510. Based upon Defendant's failure to show that genuine issues of material fact exist, the Court finds that no genuine issues of material fact exist, and the inquiry shifts to whether the moving party is entitled to judgment
The Court finds that the factual evidence of Defendant's unlawful intoxication when he injured the Plaintiff while operating a motor vehicle is more than sufficient, based upon the affidavits, reports, and depositions offered in support of Plaintiff's SOUF Facts 11, 12 and 13. The Court finds and concludes that Plaintiff has satisfied his burden under § 523(a)(9) to show that he is entitled to judgment as a matter of law.
Although not pled, the Court notes another strong policy reason why the Plaintiff's debt must be excepted from discharge. In the Ninth Circuit debts arising from restitution orders are nondischargeable under 11 U.S.C. § 523(a)(7) because of state "penal and rehabilitative interests." In re Findley, 593 F.3d 1048, 1052 n. 3 (9th Cir.2010) (citing Kelly v. Robinson, 479 U.S. 36, 53, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986)). The Defendant argues that he was no longer subject to the restitution requirement because it was reduced to a civil judgment. That civil judgment is attached to Defendant's objection (Dkt. 17) as Ex. 3. The judgment in Ex. 3 is preceded by an order of the Montana Ninth Judicial District Court, Toole County, Cause No. DC-01-028, dated August 11, 2009. The last sentence of that order read: "The Court hereby enters Judgment in favor of the victim, Shane Bucher, in the amount of the unpaid restitution, which is $29,463.70, pursuant to Mont.Code Ann. § 46-18-249." (Emphasis added).
Rule 15(b)(2), FED.R.CIV.P., requires that an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. Defendant's arguments regarding restitution, in this Court's view, imply his consent that § 523(a)(7) be treated as if raised in the pleadings. Defendant failed to pay the restitution except for a single payment. The balance owed on the $29,463.70 judgment, plus unpaid interest, is nondischargeable.
1. This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 1334 and 157.
2. This is a core proceeding to determine dischargeability of particular debt under 28 U.S.C. § 157(b)(2)(I) and 11 U.S.C. § 523(a)(9).
3. The Plaintiff satisfied his burden of showing by a preponderance of the evidence that the Defendant/Debtor Patrick H. Hughes caused the Plaintiff personal injuries while operating a motor vehicle while the Debtor was unlawfully intoxicated, and Plaintiff thus is thus entitled to Judgment excepting the unpaid balance of the $29,463.70 judgment entered on November 13, 2009, in the Montana Ninth Judicial District Court, Toole County, Cause No. DC-01-028, plus interest, from Hughes' discharge under § 523(a)(9), and also under § 523(a)(7).
