Louie v. California Judical Council et al

Filing 17

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/14/11 ORDERING On or before April 29, 2011, plaintiff and/or the bankruptcy trustee(s) shall substitute or join the bankruptcy trustee(s), or show the trustee's ratification of this action; If plaintiff and the bankruptcy trustee(s) fail to comply with the Rule 17 requirements on or before April 29, 2011, the undersigned will recommend that this action be dismissed with prejudice; The April 20, 2011 status (pretrial scheduling) confere nce is continued to May 25, 2011 at 10:00 a.m. in Courtroom No. 24. Because the parties filed a joint status report on February 22, 2011, Dckt. No. 11, no further status report need be filed; and Within five days of the date this order is filed, plaintiff shall serve a copy of this order on the bankruptcy trustee(s) and shall file a proof of such service. (Matson, R)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GEORGE S. LOUIE, 11 12 13 14 15 Plaintiff, No. CIV S-10-2530 LKK EFB PS vs. CALIFORNIA JUDICIAL COUNCIL; SACRAMENTO COUNTY SUPERIOR COURT; Defendants. _________________________________/ ORDER 16 17 This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to 18 Eastern District of California Local Rule 302(c)(21). A status (pretrial scheduling) conference is 19 currently scheduled for April 20, 2011. Dckt. Nos. 7, 10, 13. On March 10, 2011, plaintiff filed 20 a “Notice of Filing Bankruptcy,” indicating that an involuntary Chapter 7 bankruptcy petition 21 was filed against him.1 Dckt. No. 12. Therefore, on March 16, 2011, the undersigned ordered 22 plaintiff to file a brief indicating whether this case should be stayed pursuant to the automatic 23 bankruptcy stay, 11 U.S.C. § 362, and/or whether plaintiff has standing to bring this action in 24 light of the pending bankruptcy. Dckt. No. 13. The undersigned also provided defendants 25 1 26 On April 6, 2011, plaintiff also filed a second “Notice of Filing Bankruptcy,” indicating that he filed a voluntary bankruptcy petition on April 1, 2011. Dckt. No. 15. 1 1 and/or lien holders an opportunity to file such a brief and/or a response to plaintiff’s brief. Id. 2 Plaintiff filed a response to the March 16 order, indicating that because of the pending 3 bankruptcy action this case should be stayed and plaintiff lacks standing to bring this action. 4 Dckt. No. 14. Defendants also filed a response to the March 16 order, arguing that this case 5 should be dismissed based on plaintiff’s lack of standing. Dckt. No. 16. 6 As all parties acknowledge, because of the pending bankruptcy actions, plaintiff does not 7 have standing to proceed in the action. Upon a declaration of bankruptcy, all of the debtor’s 8 legal or equitable interests in property become the property of the bankruptcy estate. Manlangit 9 v. Nat’l City Mortg., 2010 WL 2044687, at *1 (E.D. Cal. May 20, 2010) (citing 11 U.S.C. 10 § 541(a)). This includes causes of action. See id.; see also Switchboard Co. v. Westinghouse 11 Elec. Corp., 789 F.2d 705, 707 (9th Cir.1986); Rowland v. Novus Fin. Corp., 949 F. Supp. 1447, 12 1453 (D. Haw. 1996). Therefore, “a bankruptcy petitioner loses standing for any causes of 13 action and the estate becomes the only real party in interest unless the bankruptcy trustee 14 abandons the claims” or the claims are exempt from the bankruptcy estate. Manlangit, 2010 WL 15 2044687, at *1 (citing In re Lopez, 283 B.R. 22, 28-29 (9th Cir. 2002); In re Pace, 146 B.R. 562, 16 565-66 (9th Cir. 1992)); Rowland, 949 F. Supp. at 1453. 17 Here, plaintiff has not indicated that the bankruptcy trustee(s) has/have abandoned the 18 claims against defendants or that this action is exempt from or should be excluded from the 19 bankruptcy estate(s); in fact, plaintiff concedes that he lacks standing to bring this action. 20 Therefore, plaintiff and/or the bankruptcy trustee(s) will be required to substitute or join the 21 bankruptcy trustee(s), or show the trustee’s ratification of this action, pursuant to the 22 requirements of Federal Rule of Civil Procedure 17(a)(3) (“The court may not dismiss an action 23 for failure to prosecute in the name of the real party in interest until, after an objection, a 24 reasonable time has been allowed for the real party in interest to ratify, join, or be substituted 25 into the action. After ratification, joinder, or substitution, the action proceeds as if it had been 26 originally commenced by the real party in interest.”). If plaintiff and the bankruptcy trustee(s) 2 1 fail to do so, the undersigned will recommend that this action be dismissed with prejudice. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. On or before April 29, 2011, plaintiff and/or the bankruptcy trustee(s) shall substitute 4 or join the bankruptcy trustee(s), or show the trustee’s ratification of this action, pursuant to the 5 requirements of Federal Rule of Civil Procedure 17(a)(3). 6 2. If plaintiff and the bankruptcy trustee(s) fail to comply with the Rule 17 requirements 7 on or before April 29, 2011, the undersigned will recommend that this action be dismissed with 8 prejudice. 9 3. The April 20, 2011 status (pretrial scheduling) conference is continued to May 25, 10 2011 at 10:00 a.m. in Courtroom No. 24. Because the parties filed a joint status report on 11 February 22, 2011, Dckt. No. 11, no further status report need be filed. 12 4. Within five days of the date this order is filed, plaintiff shall serve a copy of this order 13 on the bankruptcy trustee(s) and shall file a proof of such service. 14 DATED: April 14, 2011. 15 16 17 18 19 20 21 22 23 24 25 26 3

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