TERRY L. MYERS, CHIEF U.S. BANKRUPTCY JUDGE.
Before the Court are the motions of several third-party defendants requesting dismissal of the third-party complaint filed by pro se defendant, counterclaimant, cross-claimant and third-party plaintiff, Steve Davis ("Davis"), and also Davis's motion to strike the trustee's answer to his counterclaim. For the reasons set forth below, Davis's third-party complaint against all third-party defendants will be dismissed, and Davis's motion to strike will be denied.
On January 21, 2016, Saito Bros Inc. ("Debtor") filed a petition for bankruptcy relief under chapter 11.
On May 23, 2016, Reynard filed an adversary proceeding against John M. Karass and his law firm, John M. Karass ESQ, PLLC (collectively "Karass"), seeking to recover $40,000 paid to Karass prior to bankruptcy and held in his client trust account. Adv. Doc. No. 1.
Karass conceded he was not entitled to keep the funds and turned the funds over to Trustee. Saito stipulated that he did not provide the funds, and claimed no interest in them, and was consequently dismissed. Adv. Doc. Nos. 8 (stipulation), 9 (notice of dismissal), and 10 (order of dismissal).
On July 7, Davis filed an answer to the complaint, a counterclaim against Trustee, and a cross-claim against Karass. Adv. Doc. No. 18.
Id. at 3-4.
Hearing was held on October 24, 2016, on all these matters, and the Court took the same under advisement.
The Court makes "reasonable allowances" for pro se litigants and construes their pleadings and papers liberally. See, e.g., Hyatt v. Hyatt (In re Hyatt), 2011 WL 6179267 at *4 (Bankr. D. Idaho Dec. 13, 2011). Nevertheless, it is still the pro se litigant's burden to establish a proper legal basis for any relief sought or defense raised, and to follow the requirements of the Bankruptcy Code, Bankruptcy Rules, and Local Bankruptcy Rules. See, e.g., Arnold v. Gill (In re Arnold), 252 B.R. 778, 781 n.2 (9th Cir. BAP 2000) ("Pro se appellants are accorded some leeway, but cannot ignore the Code and Rules, and the rules of this court.").
Thus, while the Court has attempted to liberally interpret what Davis has filed and alleged, it must still apply the rules of practice and procedure to what now appears before it. The Third-party Defendants make several arguments under such rules, including Civil Rule 14 as to the TPC and Civil Rule 12(f) as to the Motion to Strike.
The Third-party Defendants argue that Davis's claims are subject to dismissal because they are not proper third-party claims under Civil Rule 14, which provides: "A defending party may, as third-party plaintiff, serve a summons and compliant on a non-party who is or may be liable to it for all or part of the claim against it." Civil Rule 14(a)(1) (emphasis added). Thus, a third-party complaint is proper when a defendant contends that the third party is liable to that defendant for the plaintiff's claim against that defendant. "It is not sufficient that the third-party claim is a related claim; the claim must be derivatively based on the original plaintiff's claim." United States v. One 1977 Mercedes Benz, 708 F.2d 444, 452 (9th Cir. 1983). Thus, "while Rule 14 provides the procedural mechanism for the assertion of a claim for contribution or indemnity, there must also exist a substantive basis for the third-party defendant's liability" to the third-party plaintiff. Kim v. Fujikawa, 871 F.2d 1427, 1434 (9th Cir. 1989).
Trustee named Davis as a defendant solely to obtain a declaration that Davis has no personal interest in or claim to the $40,000 she sought (and quickly recovered) from Karass. As the law relates to this case, Davis's TPC is proper only if the Third-party Defendants are liable to
Davis asserts that not only was he personally harmed by the conduct of the Third-party Defendants, Debtor was also harmed.
Davis, as a creditor of the estate, a party in interest, or otherwise, has no standing to bring claims on behalf of the Debtor and/or the bankruptcy estate. While any such claims embedded in the TPC could be dismissed on such basis, that problem is mooted by dismissal for failure to meet Civil Rule 14 discussed above and, more significantly, for lack of jurisdiction, as discussed below.
The motions to dismiss assert the Court lacks subject matter jurisdiction over Davis's claims against the Third-party Defendants, and the TPC should be dismissed for lack of such jurisdiction under Civil Rule 12(b)(1). Faced with Civil Rule 12(b)(1) motions regarding his TPC, Davis bears the burden of proving the existence of the Court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996).
A jurisdictional challenge under Civil Rule 12(b)(1) may be "facial" or "factual." The former asserts that the allegations in the complaint (here the TPC) are insufficient on their face to invoke federal jurisdiction. The latter disputes the truth of allegations that, by themselves, would otherwise invoke federal jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The motions here assert a facial attack, and the Court thus must presume the factual allegations of the TPC to be true and construe them in the light most favorable to Davis. Wolfe v.
In addressing bankruptcy court jurisdiction, this Court recently stated:
Wisdom v. Gugino (In re Wisdom), 2015 WL 2128830, *6 (Bankr. D. Idaho May 5, 2015).
Despite the TPC's allegations, see Adv. Doc. No. 39 at 4, Davis's claims are clearly neither "arising under" nor "arising in" matters and are not core proceedings. Nor are they "related to" proceedings. In Wisdom, this Court explained:
Id. at *6-7 (some footnotes omitted).
Davis's contentions about his injuries at the hands of the Third-party Defendants are not "related to" matters under the provisions of Title 28 and the case law. Their outcome has no effect on Debtor's bankruptcy estate; the claimed damages and right to relief, if established, inures to Davis's benefit alone. And, to the extent any of the alleged conduct of all these various parties could impact Debtor in any sense (i.e., conduct that injured Saito Brothers Inc. or otherwise altered that specific entity's rights, liabilities, etc.), Trustee is the sole party with the authority and standing to assert a right to relief.
Even absent the contentions raised by the Third-party Defendants, this Court has the ability to address the jurisdictional defects in Davis's TPC. Again, from Wisdom:
Id. at *7.
Davis's TPC raises claims that are not within the subject matter jurisdiction of this Court. The motions of the Third-party Defendants on this ground are well taken. Under those motions, and under the Court's independent power and obligation as reflected by 28 U.S.C. § 157(b)(3), and pursuant to Civil Rule 12(b)(1) and 12(h)(3), the TPC will be dismissed.
Within the motion to dismiss, Third-party Defendants Monson, Corporation of the President of the LDS Church, Deseret Management Corporation and Bybee seek an order from the Court declaring Davis to be a vexatious litigant. Adv. Doc. No. 62 at 11-15. When asked at hearing if this relief would still be sought if the TPC were to be dismissed, their counsel said it would. There is obviously a long-history of litigation between Davis and these parties, as reflected by the motion and its attachments. And counsel urged this Court to consider such a request even though multiple vexatious litigant orders imposed on Davis by other courts did not deter his filing and advocating the TPC.
In this case, a vexatious litigant order might be appropriate were the disputes between these parties to continue before this Court. However, no claims between Davis and these (or other) Third-party Defendants will survive in this adversary proceeding. Thus, the Court deems the request for such a determination rendered moot, and it will be denied on that basis.
J.R. Simplot Company requests an award of attorneys' fees pursuant to Idaho Code § 12-121. Adv. Doc. No. 58 at 18-19.
In federal courts, attorney fees ordinarily are not recoverable by the prevailing party in an action except when provided for by contract or by statute. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 257, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In addition, there is no general right to recover attorneys' fees under the Bankruptcy Code. Heritage Ford v. Baroff (In re Baroff), 105 F.3d 439, 441 (9th Cir. 1997). Instead, whether fees may be awarded in bankruptcy proceedings generally depends, in part, on whether the case involves state or federal claims and whether the applicable law allows such fees. "[A] prevailing party in a bankruptcy proceeding may be entitled to an award of attorney fees in accordance with applicable state law if state law governs the substantive issues raised in the
Though the nature of Davis's TPC claims speak at times to state law claims for damages or other relief, and at other times to federal statute (such as RICO), the Court is not adjudicating them. Recall, this was a "facial" challenge to jurisdiction under Civil Rule 12(b)(1). The Court's dismissal of the TPC is on the basis that its claims are not cognizable under Civil Rule 14 and that Davis lacks the ability to raise — and the Court the jurisdiction to adjudicate — those claims. The nature of the matter presented, and the disposition of the dismissal motions, is based on federal law (i.e., Title 28 provisions, applicable Federal Rules, and relevant federal case law). Accordingly, state law including Idaho Code § 12-121 does not apply. For that reason, and because the Court has not been presented with an argument supporting an award of fees under federal statute, all requests for attorney fees will be denied.
Costs are allowable to the prevailing Third-party Defendants. Rule 7054(b)(1); LBR 7054.1. Any costs sought must be asserted in compliance with such rules.
In response to Trustee naming Davis as a defendant in the adversary proceeding, Davis filed a counterclaim against Trustee. Trustee answered Davis's counterclaim, and Davis subsequently asserted a motion to strike Trustee's answer under Civil Rule 12(f).
Rule 12(f) provides that the court "may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The function of a motion to strike under Civil Rule 12(f) is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). "The Court ... will deny the motion if the challenged defenses have any relation to the subject matter of the controversy, could be held to in any manner defeat the plaintiff's claim, or if it fairly presents any question of fact or law." Sokoli v. J & M Sanitation, Inc., 2015 WL 7720466, at *1 (D. Idaho 2015).
The Court has carefully reviewed Trustee's answer to Davis's counterclaim. Each of Trustee's eleven asserted defenses directly relates to the allegations made in Davis's counterclaim and withstand the test for striking a pleading. Therefore, Davis's Motion to Strike Trustee's answer to counterclaim will be denied.
Davis's TPC asserts claims that are inconsistent with the requirements and limitations of Civil Rule 14. More critically, this Court lacks subject matter jurisdiction to hear Davis's TPC. Accordingly, the motions to dismiss by the Third-party Defendants will be granted, and the TPC shall be dismissed in its entirety. Davis's Motion to Strike will be denied. An appropriate order will be entered.