Filed: Sep. 04, 2015
Latest Update: Sep. 04, 2015
Summary: MEMORANDUM REGARDING DENIAL OF MOTION FOR RECONSIDERATION HERB ROSS , Bankruptcy Judge . The court will deny the Motion to Reconsider Dismissal of First Amended Complaint (ECF No. 29). The court will treat the motion to reconsider as asking the court to reconsider two orders: (a) the Final Order Dismissing First Amended Complaint with Prejudice (ECF No. 25); and (b) Order Denying Ex Parte Motion to Accept Late Filing and Memorandum in Support (ECF 26). The motion to reconsider raises
Summary: MEMORANDUM REGARDING DENIAL OF MOTION FOR RECONSIDERATION HERB ROSS , Bankruptcy Judge . The court will deny the Motion to Reconsider Dismissal of First Amended Complaint (ECF No. 29). The court will treat the motion to reconsider as asking the court to reconsider two orders: (a) the Final Order Dismissing First Amended Complaint with Prejudice (ECF No. 25); and (b) Order Denying Ex Parte Motion to Accept Late Filing and Memorandum in Support (ECF 26). The motion to reconsider raises ..
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MEMORANDUM REGARDING DENIAL OF MOTION FOR RECONSIDERATION
HERB ROSS, Bankruptcy Judge.
The court will deny the Motion to Reconsider Dismissal of First Amended Complaint (ECF No. 29). The court will treat the motion to reconsider as asking the court to reconsider two orders: (a) the Final Order Dismissing First Amended Complaint with Prejudice (ECF No. 25); and (b) Order Denying Ex Parte Motion to Accept Late Filing and Memorandum in Support (ECF 26).
The motion to reconsider raises two points, claiming that: (a) the late filing of the Seconded Amended Complaint was excusable; and (b) the Second Amended Complaint states a plausible claim. In the order denying the acceptance of the late filing, the court stated that it had reviewed the Second Amended Complaint and found it still did not state a plausible claim. If it had, the court would have excused the late filing.
The total argument for reconsiderartion about the plausibility of the Second Amended Complaint is:
2. The second amended complaint set forth the basic requirements for a complaint, asserting facts that, if proven true, would find in favor of Plaintiff against Defendants. This Court supposed that because there were questions as to the facts asserted that no plausible cause of action existed, but those facts can only be resolved through the discovery process.1
The court disagrees that a plausible claim is stated. The Second Amended Complaint (the SAC) only raises a stay violation that allegedly occurred in late 2011 and the first half of 2012. Plaintiff is seeking sanction under 11 USC §362. Plaintiff alleges in ¶14 of the SAC that;
14. Plaintiff filed a lawsuit against the defendants in Musselshell County, Montana cause number: DV-11-08, seeking to enforce protection of the name City of Roundup and to prevent its future use by Defendants. The law suit was for a declaratory judgment. It did not seek other compensation, only adherence to a rule of law. No counterclaim was filed in this case.2
He never tells us what the status of that declaratory judgment claim is in the Montana court, but skips to the allegation in ¶15 that the Montana judge declared him a vexatious litigant who was required to get pre-approval before filing any new lawsuits or papers in court, which he has said he has complied with.
Paragraph 16 says he was arrested in November 2011 (still pre-bankruptcy) stemming from the Montana case, DV-11-08. He does not say what reason the Montana court gave for its issuance. He alleges he appeared before the Montana judge and was released on $2,000 bail (¶18), but still does not say what the warrant was for.
He filed a chapter 7 bankruptcy in Alaska on December 12, 2011 and immediately served notice on the Montana judge (¶¶21, 22), yet:
22. On or about December 14th, 2011, Judge Cybulski, in Case No: DV-11-08, held a hearing. At the hearing, Judge Cybulski said Donald Tangwall had filed bankruptcy and all proceedings were stopped. However, defendants, by and through counsel R. Allen Payne, wrongly asserted that the matter was an exception to the stay because it was a criminal case. The judge accepted this argument and reissued a warrant for Plaintiff.
Still no statement of what the bench warrant was for. No coherent chronology of all the events, no copies or summary of the actual warrant or a motion for its issuance, no copy of the complaint in DV-11-08, or of any order ruling on plaintiff's complaint that he was entitled to use the name of the City of Roundup and the actual city was not. In fact, the Montana court had seven months earlier ruled plaintiff's claim was frivolous, but that fact is outside the scope of this Rule 12(b) dismissal.3 This lack of specificity is in the face of the fact that this bankruptcy court has previously said in several memoranda, which are incorporated by reference, that this information was critical to stating a plausible case that the automatic stay had been violated.4
Instead of simply providing the information to make the complaint plausible, plaintiff responds in his motion for reconsideration: "This Court supposed that because there were questions as to the facts asserted that no plausible cause of action existed, but those facts can only be resolved through the discovery process." This is a discomforting thought: "we can't state the facts now, but we may come up with it in a fishing expedition." This may be an appropriate argument when the information is in ken of the defendants,5 but is hard to accept when the plaintiff has ready access to it.
