In re Electronic Theatre Restaurants Corp., Bankruptcy No. B84-03052.

• Decision Date: 15 January 1986
• Docket Number: Bankruptcy No. B84-03052.
• Citation: 57 BR 147
• Parties: In re ELECTRONIC THEATRE RESTAURANTS CORPORATION, Debtor and Debtor-In-Possession.
• Court: U.S. Bankruptcy Court — Northern District of Ohio

57 B.R. 147 (1986)

In re ELECTRONIC THEATRE RESTAURANTS CORPORATION,

Debtor and Debtor-In-Possession.

Bankruptcy No. B84-03052.

United States Bankruptcy Court, N.D. Ohio, E.D.

January 15, 1986.

Norman S. Buckvar, McCarthy, Lebit, Crystal, Kleinman & Haiman Co., Cleveland, Ohio, Stirling Lathrop, Richard D. Greenfield, Nicholas E. Chimicles, Greenfield & Chimicles, Haverford, Pa., and Robert H. Levin, Adelman, Lavine, Krasny, Gold & Levin, Philadelphia, Pa., for Morris Glassman.

Gail E. Sindell, H. Jeffrey Schwartzberg, Daniel D. Domozick, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio, for debtor, debtor-in-possession.

MEMORANDUM OF OPINION AND ORDER

JOHN F. RAY, Jr., Bankruptcy Judge.

This matter is before the court on the motion of Morris Glassman ("Glassman") for application of Bankruptcy Rule 7023 and for class certification of claim, the motion of Electronic Theatre Restaurants Corporation (ETRC"), debtor and debtor-in-possession, for summary judgment in favor of ETRC as a matter of law and to dismiss proof of claim number 99 insofar as it purports to be filed by Morris Glassman in a representative capacity, and briefs of counsel.

On March 9, 1984, a class action suit ("Class Action") was brought in the United States District Court for the Eastern District of Pennsylvania against ETRC and others, alleging violations of the federal securities laws in connection with purchases by Morris Glassman and others of securities of ETRC sold in connection with its initial public offering. In the Class Action, Glassman was substituted for the original individual plaintiff, and the plaintiff class was certified on November 16, 1984. On December 6, 1984, ETRC filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. This Court set April 15, 1985, as the last day on which proofs of claim were permitted to be filed. On April 12, 1985, Glassman filed a proof of claim in which he asserted an individual as well as a representative claim on behalf of the plaintiff class in the Class Action. ETRC filed its objections to Glassman's proof of claim on May 9, 1985.

Section 501(a) of the Bankruptcy Code provides: "A creditor or an indenture trustee may file a proof of claim. An equity security holder may file a proof of interest." Likewise, Bankruptcy Rule 3003(c)(1) states: "Any creditor or indenture trustee may file a proof of claim within the time prescribed by subdivision (c)(3) of this rule." A "creditor" is defined as an "entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor." 11 U.S.C. § 101(9)(A). An "entity" is then defined as a "person, estate, trust, and governmental unit." 11 U.S.C. § 101(14). "Person" is defined in section 101(33) as including "individual, partnership and corporation, but does not include governmental unit." Nowhere in the Code is "creditor" defined as a "class" or "representative" of a group or class.

Bankruptcy Rule 3001(b) provides: "A proof of claim shall be executed by the creditor or the creditor's authorized agent except as provided in Rules 3004 and 3005." (emphasis added) Rules 3004 and 3005 allow, in certain circumstances, the filing of claims on behalf of creditors by the debtor or trustee, a guarantor, surety, indorser or other co-obligor. A proof of claim, except a claim for wages, salary or commissions, must conform substantially to Official Form No. 19 Bankr.R. 3001(a). Official Form No. 19 has appropriate blanks to be filled in, depending on whether the claimant is an individual, partnership, corporation or agent. The portion to be filled in by an agent requires the agent to list the name and address of the claimant on whose behalf he is filing the claim.

Glassman's procedural arguments, based on Rule 23 of the Federal Rules of Civil Procedure, are not persuasive. Bankruptcy Rule 7023 states: "Rule 23 F.R. Civ.P. applies in adversary proceedings." The filing of a proof of claim, however, does not constitute an adversary proceeding, and thus Rule 7023 can have no applicability on that basis. See In Re Standard Metals Corp., 48 B.R. 778, 783 (D.Colo. 1985).

Bankruptcy Rule 3001(b) provides: "A proof of claim shall be executed by the creditor or the creditor's authorized agent except as provided in Rules 3004 and 3005." (emphasis added) Glassman does not purport to rely on Rules 3004 and 3005, nor could he, since these rules allow the filing of claims on behalf of creditors by the debtor or trustee, a guarantor, surety, endorser or other co-obligor. Nor is Glassman the "authorized agent" of the class. On October 9, 1985, Glassman filed with the Court a "Verified Statement Pursuant to Rule 2019 of the Rules...