In re Passialis

• Decision Date: 15 April 2003
• Docket Number: Adversary No. 02 A 01395.,Bankruptcy No. 02 B 24435.
• Citation: 292 B.R. 346
• Court: U.S. Bankruptcy Court — Northern District of Illinois
• Parties: In re Denny PASSIALIS, Debtor. Ernie Rizzo, Plaintiff, v. Denny Passialis, Defendant.

292 B.R. 346

In re Denny PASSIALIS, Debtor.

Ernie Rizzo, Plaintiff, v. Denny Passialis, Defendant.

Bankruptcy No. 02 B 24435.

Adversary No. 02 A 01395.

United States Bankruptcy Court, N.D. Illinois, Eastern Division.

April 15, 2003.

COPYRIGHT MATERIAL OMITTED

Ernie Rizzo, pro se.

Gregory J. Martucci, Esq., Law Offices of Gregory J. Martucci, P.C., Roselle, IL, for Defendant.

David R. Brown, Esq., David R. Brown & Associates P.C., Roselle, IL, trustee.

MEMORANDUM OPINION

JOHN H. SQUIRES, Bankruptcy Judge.

This matter comes before the Court on the motion of the debtor, Denny Passialis (the "Debtor"), for summary judgment pursuant to Federal Rule of Civil Procedure 56 and Federal Rule of Bankruptcy Procedure 7056 on the complaint filed by Ernie Rizzo ("Rizzo") against the Debtor for the determination of the dischargeability of a debt under 11 U.S.C. § 523(a)(6). For the reasons set forth herein, the Court denies the motion because there are material factual disputes. The Court lacks subject matter jurisdiction under 28 U.S.C. § 157(b)(5) to determine the merits of or liquidate the slander claim underlying Rizzo's dischargeability complaint because the claim is in the nature of a personal injury tort. Although the Court has jurisdiction to determine whether Rizzo's claim is non-dischargeable under 28 U.S.C. § 1334, Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois, 28 U.S.C. § 157(b)(2)(I), 11 U.S.C. §§ 523(a)(6) and 523(c)(1) and Federal Rule of Bankruptcy Procedure 4007(c), Rizzo may forthwith move to withdraw the district court's reference of this matter under 28 U.S.C. § 157(d) in order for the district court to assess the Debtor's potential liability and award appropriate damages. Pursuant to the Final Pretrial Order, a trial is scheduled to commence in this adversary proceeding on May 30, 2003 at 1:00 p.m., and unless the reference is withdrawn, the trial will proceed as scheduled.

I. JURISDICTION AND PROCEDURE

The Court has jurisdiction to entertain this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. The determination of the issue of whether Rizzo's claim against the Debtor is non-dischargeable under 11 U.S.C. § 523(a)(6) is a core proceeding under 28 U.S.C. § 157(b)(2)(I). The Court, however, lacks subject matter jurisdiction to determine the merits of or liquidate Rizzo's personal injury claim against the Debtor under 28 U.S.C. § 157(b)(5). The merits of the underlying slander claim must be tried in the district court or it may lift the automatic stay to allow the claim to be tried and liquidated in the state court.

II. APPLICABLE STANDARDS

In order to prevail on a motion for summary judgment, the movant must meet the statutory criteria set forth in Rule 56 of the Federal Rules of Civil Procedure, made applicable to adversary proceedings by Federal Rule of Bankruptcy Procedure 7056. Rule 56(c) reads in part:

[T]he judgment sought shall be rendered forthwith if the pleadings, depositions answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). See also Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 402 (7th Cir.1998). The primary purpose for granting a summary judgment motion is to avoid unnecessary trials when there is no genuine issue of material fact in dispute. Trautvetter v. Quick, 916 F.2d 1140, 1147 (7th Cir.1990); Farries v. Stanadyne/Chicago Div., 832 F.2d 374, 378 (7th Cir.1987) (quoting Wainwright Bank & Trust Co. v. Railroadmens Federal Sav. & Loan Ass'n of Indianapolis, 806 F.2d 146, 149 (7th Cir.1986)). Where the material facts are not in dispute, the sole issue is whether the moving party is entitled to a judgment as a matter of law. ANR Advance Transp. Co. v. International Bhd. of Teamsters, Local 710, 153 F.3d 774, 777 (7th Cir.1998).

In 1986, the United States Supreme Court decided a trilogy of cases that encourages the use of summary judgment as a means to dispose of factually unsupported claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden is on the moving party to show that no genuine issue of material fact is in dispute. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Matsushita, 475 U.S. at 585-86, 106 S.Ct. 1348; Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

All reasonable inferences drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion. Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir.1998). The existence of a material factual dispute is sufficient only if the disputed fact is determinative of the outcome under applicable law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Frey v. Fraser Yachts, 29 F.3d 1153, 1156 (7th Cir.1994). "Summary judgment is not an appropriate occasion for weighing the evidence; rather the inquiry is limited to determining if there is a genuine issue for trial." Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990). The Seventh Circuit has noted that trial courts must remain sensitive to fact issues where they are actually demonstrated to warrant denial of summary judgment. Opp v. Wheaton, 231 F.3d 1060 (7th Cir.2000); Szymanski v. Rite-Way, 231 F.3d 360 (7th Cir.2000).

The party seeking summary judgment always bears the initial responsibility of informing the Court of the basis for its motion, identifying those portions of the "pleadings, depositions, answers to interrogatories, and affidavits, if any," which it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the motion is supported by a prima facie showing that the moving party is entitled to judgment as a matter of law, a party opposing the motion may not rest upon the mere allegations or denials in its pleadings, rather its response must show that there is a genuine issue for trial. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; Patrick v. Jasper County, 901 F.2d 561, 564-566 (7th Cir.1990). The manner in which this showing can be made depends upon which party will bear the burden of persuasion at trial. If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production by either submitting affirmative evidence that negates an essential element of the non-moving party's claim, or by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim. See Union Nat'l Bank of Marseilles v. Leigh (In re Leigh), 165 B.R. 203, 212-13 (Bankr.N.D.Ill.1993) (citation omitted).

Local Bankruptcy Rule 402.M of the Local Bankruptcy Rules for the United States Bankruptcy Court for the Northern District of Illinois, which deals with summary judgment motions, was modeled after LR56.1 of the Local Rules of the United States District Court for the Northern District of Illinois. Hence, the case law construing LR56.1 and its predecessor Local Rule 12(M) applies to Local Bankruptcy Rule 402.M.

Pursuant to Local Bankruptcy Rule 402, a motion for summary judgment imposes special procedural burdens on the parties. Specifically, Rule 402.M requires the moving party to supplement its motion and supporting memorandum with a statement of undisputed material facts ("402.M statement"). The 402.M statement "shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph. Failure to submit such a statement constitutes grounds for denial of the motion." Id.

The Debtor filed a 402.M statement that substantially complies with the requirements of Rule 402.M. It contains numbered paragraphs setting out uncontested facts with specific references to parts of the record as well as additional exhibits.

The party opposing a summary judgment motion is required by Local Rule 402.N to respond ("402.N statement") to the movant's 402.M statement, paragraph by paragraph, and to set forth any material facts that would require denial of summary judgment, specifically referring to the record for support of each denial of fact. Local Bankr.R. 402.N. The opposing party is required to respond "to each numbered paragraph in the moving party's statement" and make "specific references to the affidavits, parts of the record, and other supporting materials relied upon." Local Bankr.R. 402.N(3)(a). Most importantly, "[a]ll material facts set forth in the [402.M] statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." Local Bankr.R. 402.N(3)(b).

"Although civil litigants who represent themselves (`pro se') benefit from various procedural protections not otherwise afforded to the ordinary attorney-represented litigant ... pro se litigants are not entitled to a general dispensation from the rules of procedure or court-imposed deadlines." Jones v. Phipps, 39 F.3d 158, 163 (7th Cir.1994) (citations omitted). It is the "well-established duty of the trial court to ensure that the claims of a pro se litigant are given a `fair and meaningful consideration.'" Palmer v. City of Decatur, 814 F.2d 426, 428-29 (7th Cir.1987) (quotation and citations omitted); see also Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.1981) (pro se pleadings are held to less stringent standards than...