Owen v. McCaw (In re Mccaw)
| Decision Date | 08 March 2019 |
| Docket Number | Adversary Proceeding No. 18-3057-dwh,Case No. 18-30916-dwh7 |
| Parties | In re Jennifer Ann McCaw, Debtor. Ronald A. Owen, Plaintiff, v. Jennifer Ann McCaw, Alan McCaw, and Thomas O. Regan, Defendants. |
| Court | United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — District of Oregon |
Below is an opinion of the court.
NOT FOR PUBLICATION
In this action, Ronald Owen objects to and requests revocation of the chapter 7 bankruptcy discharge granted to Jennifer Ann McCaw. Because his claims either fail to state claims for relief or are without supporting evidence, I will grant judgment on the pleadings or summary judgment in her favor on all claims in this action and deny his pending motions.
In the initial complaint filed on June 7, 2018, Owen named three defendants: Jennifer McCaw, the debtor in this chapter 7 case; her husband, Alan McCaw; and Thomas O. Regan.1 (Because the McCaws share a last name, I refer to them by their first names.)
Jennifer and Alan answered the complaint,2 but Regan did not. I dismissed the claims against Alan and Regan for lack of subject-matter jurisdiction,3 leaving Jennifer as the sole remaining defendant. Owen then filed first-amended,4 second-amended,5 and third-amended6 complaints. Other than my dismissal of claims against Alan and Regan, I have not dismissed or stricken allegations from any of the complaints, and Owen made each complaint amendment voluntarily.
On November 6, I ordered that two documents constitute Owen's complaint: the Complaint (Third Amended),7 filed September 21, and the First Amended Motion to Revoke Bankruptcy Discharge,8 filed October 1.
Jennifer has filed two dispositive motions: for summary judgment9 and for judgment on the pleadings.10 The summary-judgment motion includes the declaration of the chapter 7 trustee, Amy Mitchell. Jennifer has also filed her concise statement of facts supporting summaryjudgment11 and memorandum supporting both motions.12 On December 24, Owen filed his objections to the trustee's declaration,13 objections to the motion for judgment on the pleadings,14 response to Jennifer's concise statement of facts,15 opposition to summary judgment,16 response to her declaration supporting summary judgment,17 and memorandum.18
Also on December 24, Owen filed the following motions: motion to sanction trustee,19 crossclaim against the trustee,20 motion "of special issue" re the trustee's declaration,21 motion to reopen pleadings,22 motion for contempt on discovery,23 and second-amended motion to revoke discharge.24
On January 15 and 22, 2019, I held hearings on all the motions. On January 22, after that day's hearing, the court clerk docketed the following three additional papers mailed to the court by Owen: Plaintiff Response to Defendants Response on Contempt Motion [ECF 156],25 Affidavit to Repudiate Misconstruction Summary Judgment & Judgment on Pleadings,26 and Notice of Special Issue: Allodial Declaration Under Land Patent.27
Summary judgment is available if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."28 A party may obtain summary judgment by pointing out that there is no evidence that would allow a reasonable factfinder to decide in favor of the opposing party.29 The opponent has the burden to present the court with admissible evidence.30 The function of summary judgment is not to decide disputed questions of fact, so the opponent need not prove its claims to escape summary judgment. But the opponent must present some admissible evidence to demonstrate the existence of a genuine issue of material fact preventing judgment in the movant's favor.31
A party asserting that a fact is genuinely disputed must support the assertion in one of the ways set forth in Federal Rule of Civil Procedure (Civil Rule) 56(c)(1), the most common of which is citing to affidavits or declarations.
Because Owen is representing himself, I added the following extra information to the language of the standard scheduling order:32
Because plaintiff is representing himself, a copy of LBR 7056-1 [] is attached to this order for his convenience. Plaintiff should study it carefully. In particular, if plaintiff wishes to oppose summary judgment, he should be aware of the requirement to file a response to defendant's Concise Statement of Material Facts and to provide declarations and/or other factual materials to support his position.33
Nevertheless, he included no affidavits, declarations, or any factual materials in his opposition to summary judgment.
A party may move for judgment on the pleadings "after the pleadings are closed—but early enough not to delay trial."34 A court may grant the motion if, "taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law."35 In other words, judgment on the pleadings is proper when, accepting the allegations of the nonmoving party, the moving party is entitled to judgment. A motion for judgment on the pleadings is functionally identical to a motion to dismiss for failure to state a claim.36
In Owen's motion for contempt of discovery,37 he requests relief under Civil Rule 37(a)(4) and an order "of contempt on discovery" under Civil Rule 37(b)(2)(A)(vii) for "failures to disclose per FRCP 26(a) [ECF 114]." He contends that Jennifer's lawyer "is in violation of its own Discovery relief [ECF 69], filed September 28, 2018." He alludes to his request for "account documents" and says that her lawyer "provides evasive [note 1] answers account-specific [note 2] information, as required under FRCP 34(a)(1)." Note 1 says "FRCP37(a)(4)," and note 2 says "see 'Disc.' packet; 'Notice of Interrogatory (First Amended)'." Also, he bases his motion to re-open pleadings in part on "[f]ailure of Defense tocomply with Discovery requirements [note 4] under FRCP 34(a)(1)(A)." Note 4 says "See 'Disc' exhibit & sanction under motion."
In Jennifer's response,38 she says she has responded to and answered all of his discovery requests; he has not attached discovery requests and her answers, so one cannot tell what he is complaining about; and he has not complied with Civil Rule 37(a)(1), requiring him to seek to resolve discovery disputes informally before filing a motion to compel and to certify that he did so in good faith. She requests that the motion be denied and that the court award her attorney fees under Civil Rule 37(a)(5)(B).
A motion to hold a party in contempt may not be filed unless the party has violated a court order compelling discovery; I've entered no such orders. Even if I were to interpret the contempt motion as a motion to compel, it would be deficient. Under Civil Rule 37(a)(1), a motion to compel disclosure or discovery must certify that the movant has in good faith conferred or attempted to confer with the party failing to make disclosure or discovery in an effort to obtain it without court action. And under LBR 7037-1(b), a motion to compel discovery must set forth the relevant discovery request. Owen did not make the required certification, which by itself warrants my denial of the motion.39 He referred to Jennifer's "misplacement of account documents under discovery," but then he said that he "re-sent the documents and requested an amended response." If he re-sent documents, he already had them and did not need to get them by discovery. His reference to requesting an "amended response" and "evasive answers" suggests that he might have made some other discovery request, but he does not say what that request was. In other words, he does not identify any document request or otherdiscovery request to which Jennifer had not complied. Nor does he say how she failed to make the Civil Rule 26(a) disclosures.
After the January 22 hearing, the court clerk docketed Owen's "response"40 to Jennifer's response to his contempt motion. That paper is in fact a reply in support of the contempt motion, which is prohibited by local rule.41 Even if I were to consider the reply, it does not add to his prior papers and his January 22 testimony.
I will deny the contempt motion, both as one for contempt and as one to motion to compel discovery, and I will grant Jennifer's request for attorney fees under Civil Rule 37(a)(5)(B).
In his summary-judgment opposition,42 Owen refers to Civil Rule 56(d) and contends that "key discovery questions remain unanswered and Defense is contemptuous of its duty to disclose [note 3]." Note 3 says "Rule 34(a)(1)(B); & ECF [69]." Civil Rule 34 governs document-production. Docket item (ECF) 69 in this action is Jennifer's motion to extend the deadline to file dispositive motions; it does not address discovery.
Civil Rule 56(d) permits a court to defer disposition of a summary-judgment motion to give the opponent time to obtain declarations or take discovery—if the opponent provides a supporting declaration.43 Although Owen did not provide a declaration, he refers at least once to Civil Rule 56(d)44 and otherwise suggests that he needs more discovery from Jennifer.45
A summary-judgment opponent who wants to take additional discovery "must explain what further discovery would reveal that is essential to justify [its] opposition to the motion[] for summary judgment."46 Although the opponent cannot predict "precisely what further discovery will reveal, . . . the evidence sought must be more than the object of pure speculation."47 The opponent must "show [that]: (1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment."48 In short, to obtain a deferral under Civil Rule 56(d), Owen must demonstrate that...
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