In re Geller
Citation | 170 BR 183 |
Decision Date | 05 July 1994 |
Docket Number | Bankruptcy No. 93-33333-BKC-SHF. Adv. No. 94-0392-BKC-RAM-A. |
Parties | In re James A. GELLER, Debtor. UNION STATE BANK, Plaintiff, v. James A. GELLER, Defendant. |
Court | United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Florida |
Leslie Scott Osborne, Furr and Cohen, P.A., Boca Raton, FL, for plaintiff Union State Bank.
Frank P. Terzo, Coral Gables, FL, for James A. Geller, debtor.
Daniel L. Bakst, Trustee, West Palm Beach, FL.
Before A. JAY CRISTOL, Chief Judge, and ROBERT A. MARK, PAUL G. HYMAN, Jr., STEVEN H. FRIEDMAN and RAYMOND B. RAY, Bankruptcy Judges.
Union State Bank, a creditor of debtor herein, filed a complaint objecting to debtor's discharge. The adversary proceeding was filed on April 29, 1994. A pre-trial conference was set for July 12, 1994 and the proceeding was set for trial during the week of July 25, 1994. On June 23, 1994, plaintiff filed a Motion to Strike Pretrial Order as Violative of the Bankruptcy Rules of Procedure, Title 28 of the United States Code and the Due Process Clause of the 5th Amendment ("Motion to Strike"). Because the Motion to Strike attacks the validity of a standard order issued by each judge of this Court, the Motion to Strike has been reviewed by the Court en banc.
In accordance with uniform practice in the Southern District of Florida, an "Order Setting Filing and Disclosure Requirements for Pre-Trial and Trial" ("Pretrial Requirements Order") (C.P. No. 3) was entered in this proceeding on April 29, 1994. Paragraph 12 provides:
"unless otherwise ordered, the direct testimony of all witnesses, except adverse, hostile or rebuttal witnesses, shall be presented by sworn declaration consisting of a succinct written statement of the direct testimony which that witness would be prepared to give if questions were propounded in the usual fashion at trial."
The movant has labeled this "provision 12" and argues, among other things, that it is violative of Federal Rule of Civil Procedure 43(a).
Movant cites eight cases in the motion:
1. In re Zumbrun, 88 B.R. 250 (9th Cir. B.A.P.1988)
2. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)
3. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) 4. Scherer v. Davis, 543 F.Supp. 4 (N.D.Fla.1981)
5. Adams v. Wainwright, 512 F.Supp. 948 (N.D.Fla.1981)
6. Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940)
8. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951)
The Court has reviewed each of the eight cases. None of them support an order striking the use of declarations. In contrast to the cases movant cites, there is persuasive circuit court authority enforcing a similar trial procedure in the Ninth Circuit. In re Adair, 965 F.2d 777 (9th Cir.1992). Moreover, any challenge to "provision 12" is premature until the movant seeks and the Court denies a specific request to allow the use of live direct testimony of one or more witnesses in this adversary proceeding.
These respective reasons for denying the Motion to Strike are discussed below.
Paragraph 12 of the Pretrial Requirements Order begins, "unless otherwise ordered," and thus permits application to the court to utilize traditional direct testimony of any witness, if requested, and the court finds merit in the request. In the instant case, the pre-trial conference where issues like this one are usually discussed, is yet to take place. In this and any other proceeding, the intent of the phrase "unless otherwise ordered" is to provide flexibility and permit the use of live direct examination where appropriate. The Court cannot speculate on whether movant would be entitled to such relief here. The point is, in the absence of a request to present live testimony, which has been denied, the Motion to Strike is premature and fatally defective.
In a case undiscovered by the movants, In re Burg, 103 B.R. 222 (9th Cir. BAP 1989), the court agreed in part with movant's arguments and held that a bankruptcy court procedure similar, but not identical, to the procedure in use in the Southern District of Florida, infringed on a party's "due process" rights. This decision, however, was specifically overruled by the Ninth Circuit in In re Adair, 965 F.2d 777 (9th Cir.1992).
The issue is discussed in detail by Judge Barry Russell in § 611.1 of his excellent "Bankruptcy Evidence Manual" 1993 edition. Judge Russell discusses the procedure and the Adair opinion at length in an analysis adopted by this Court.
Held: Affirmed.
The Court concluded:
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