Larry Boecken Jr v. Gallo Glass Company

Filing 104

STIPULATION and ORDER signed by District Judge Lawrence J. O'Neill on 1/31/2012 vacating 2/29/2012 Pre-Trial Conference and all case deadlines pending action by the Bankruptcy Trustee. ( Status Report Filing Deadline: 2/17/2012.(Lundstrom, T)

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NANCY L. ABELL (SB# 088785)
[e-mail]
PAUL HASTINGS LLP
515 South Flower Street, Twenty-Fifth Floor
Los Angeles, CA 90071-2228
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
GALLO GLASS COMPANY

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY BOECKEN, JR.,

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Plaintiff,
v.
GALLO GLASS COMPANY, and
DOES 1 THROUGH 50,
INCLUSIVE,
Defendant.

CASE NO. 1:05-CV-00090 LJO BAM
STIPULATION AND [PROPOSED] ORDER TO
VACATE FEBRUARY 29, 2012 PRE-TRIAL
CONFERENCE AND ALL CASE DEADLINES
PENDING ACTION BY THE BANKRUPTCY
TRUSTEE
Judge:

Hon. Lawrence J. O’Neill

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Case No. 1:05-cv-00090 LJO BAM

STIPULATION AND [PROPOSED] ORDER TO
VACATE FEBRUARY 29, 2012 PRE-TRIAL
CONFERENCE & CASE DEADLINES

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BACKGROUND

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1.

This action was filed in 2004.

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2.

On August 21, 2008, Plaintiff Larry Boecken, Jr., filed a Voluntary Petition

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for bankruptcy under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court

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for the Eastern District of California, Case No. 08-15050-B-7. He did not list this lawsuit as an

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asset on the schedules he filed with the Bankruptcy Court. On or about December 30, 2008, the

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United States Bankruptcy Court granted Plaintiff a discharge under section 727 of title 11, United

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States Code. On May 5, 2011, new counsel for Defendant Gallo Glass Company, Nancy L.

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Abell, apprised Plaintiff’s counsel of these facts, promptly following her discovery of them at the

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time she was retained as counsel. Plaintiff’s counsel advises the Court that it was unaware of

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Plaintiff’s bankruptcy proceeding until Ms. Abell brought it to counsel’s attention.

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3.

On May 5, 2011, counsel for Defendant Gallo Glass Company, Nancy L.

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Abell, also apprised Plaintiff’s counsel that Defendant would seek leave of this Court to file a

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motion for summary judgment. Defendant submits that (i) Plaintiff’s claims are the property of

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the bankruptcy estate; (ii) Plaintiff has no standing to pursue them in this Court for any purpose,

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including settlement; and (iii) Plaintiff is judicially estopped from litigating this lawsuit.

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Plaintiff’s counsel asked that Plaintiff first be given an opportunity to consult bankruptcy counsel.

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4.

On May 25, 2011, Plaintiff filed an application to reopen his Chapter 7

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bankruptcy case, along with amended schedules listing this lawsuit as an asset omitted from his

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original filing.

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5.

On May 27, 2011, the United States Bankruptcy Court for the Eastern

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District of California reopened Plaintiff’s Chapter 7 bankruptcy case, No. 08-15050-B-7, and

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ordered that the amended schedules be served on the U.S. Trustee within 30 days along with a

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declaration from Plaintiff Boecken explaining why the asset was omitted from the original

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schedules. The order further provides that the U.S. Trustee thereafter may have 30 days to

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appoint a Chapter 7 trustee if necessary to investigate and administer the omitted asset, namely

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this lawsuit.
Case No. 1:05-cv-00090 LJO BAM

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STIPULATION AND [PROPOSED] ORDER TO
VACATE FEBRUARY 29, 2012 PRE-TRIAL
CONFERENCE & CASE DEADLINES

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6.

On June 28, 2011, the U.S. Trustee appointed James Salven as the trustee.

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Mr. Salven has not yet made a determination regarding whether the bankruptcy estate will appoint

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counsel for the estate to prosecute this case or whether Mr. Boecken’s counsel, Mina L. Ramirez

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and Noah W. Kanter of the Law Offices of Mina L. Ramirez will prosecute this case on behalf of

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the bankruptcy estate.

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7.

Counsel of record in this case cannot proceed with motions or pre-trial

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pleadings until the Trustee acts because the case is now the property of the bankruptcy estate and

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the identity of counsel to try the case is unknown.

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8.

Once the Trustee acts, Defendant will seek leave of this Court for an order

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to permit it to file a motion for summary judgment against Plaintiff as to his remaining claim,

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inter alia, on the ground that he is judicially estopped from litigating it because he failed to list

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this lawsuit as an asset on the schedules he filed with the Bankruptcy Court, failed to inform

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Defendant that he had filed for bankruptcy, and failed to inform Defendant that on or about

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December 30, 2008, the United States Bankruptcy Court granted Plaintiff a discharge under

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section 727 of title 11, United States Code, all to Defendant’s detriment.

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STIPULATION

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Therefore, the parties jointly request that this Court (i) vacate the February 29,

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2012 pre-trial conference, (ii) vacate all deadlines in the case, including the trial date, and (iii)

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order the parties to promptly inform the Court when the Trustee has appointed counsel to

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represent the bankruptcy estate so that the appropriate participants can be served with notice of

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motions and required to participate in the previously-ordered settlement conference in this case.

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Dated: January 30, 2012

LAW OFFICES OF MINA L. RAMIREZ

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By: __/s/_Mina L. Ramirez_______________________
Mina L. Ramirez
Counsel for Plaintiff
Larry Boecken, Jr.

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Case No. 1:05-cv-00090 LJO BAM

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STIPULATION AND [PROPOSED] ORDER TO
VACATE FEBRUARY 29, 2012 PRE-TRIAL
CONFERENCE & CASE DEADLINES

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Dated: January 30, 2012

PAUL HASTINGS LLP

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By: __/s/_Nancy L. Abell_________________________
Nancy L. Abell
Counsel for Defendant
Gallo Glass Company

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ORDER

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This Court ENTERS this Order based on the parties’ above stipulation
and FURTHER ORDERS the parties, no later than February 17, 2012, to file a
status report and further status reports every 45 days thereafter.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

January 31, 2012

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UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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66h44d

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Case No. 1:05-cv-00090 LJO BAM

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STIPULATION AND [PROPOSED] ORDER TO
VACATE FEBRUARY 29, 2012 PRE-TRIAL
CONFERENCE & CASE DEADLINES