Louie v. California Judical Council et al

Filing 19

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/5/11 ORDERING the request by the Chapter 7 trustee in plaintiff's involuntary bankruptcy case, Alan Fukushima, for a continuance of the deadline for Rule 17 substitution, joinder, and/or ra tification is granted. See Dckt. No. 18. On or before 8/3/11, plaintiff and/or the bankruptcy trustee(s) shall substitute or join the bankruptcy trustee(s), or show the trustee's ratification of this action, pursuant to the requirements of Feder al Rule of Civil Procedure 17(a)(3). If plaintiff and the bankruptcy trustee(s) fail to comply with the Rule 17 requirements on or before 8/3/11, the undersigned will recommend that this action be dismissed with prejudice. The status (pretrial sched uling) conference currently set for hearing on 5/25/11 is continued to 10/19/11 at 10:00 a.m. in Courtroom No. 24. Although the parties filed a joint status report on 2/22/11, Dckt. No. 11, further status reports shall be filed on or before 10/5/11. Within five days of the date this order is filed, plaintiff shall serve a copy of this order on the bankruptcy trustee in plaintiff's Voluntary Bankruptcy Case and shall file a proof of such service.(Matson, R)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9

GEORGE S. LOUIE,

10

Plaintiff,

11
12
13
14

No. CIV S-10-2530 LKK EFB PS

vs.
CALIFORNIA JUDICIAL COUNCIL;
SACRAMENTO COUNTY SUPERIOR
COURT;
Defendants.
_________________________________/

ORDER

15
This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to

16
17

Eastern District of California Local Rule 302(c)(21). On March 10, 2011, plaintiff filed a

18

“Notice of Filing Bankruptcy,” indicating that an involuntary Chapter 7 bankruptcy petition was

19

filed against him.1 Dckt. No. 12. Therefore, on March 16, 2011, the undersigned ordered

20

plaintiff to file a brief indicating whether this case should be stayed pursuant to the automatic

21

bankruptcy stay, 11 U.S.C. § 362, and/or whether plaintiff has standing to bring this action in

22

light of the pending bankruptcy. Dckt. No. 13. The undersigned also provided defendants

23

and/or lien holders an opportunity to file such a brief and/or a response to plaintiff’s brief. Id.

24

////

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

Plaintiff and defendants each filed responses to the March 16 order. Dckt. Nos. 14, 16.

2

Thereafter, on April 14, 2011, the undersigned issued an order noting that “because of the

3

pending bankruptcy actions, plaintiff does not have standing to proceed in the action” and that

4

“plaintiff has not indicated that the bankruptcy trustee(s) has/have abandoned the claims against

5

defendants or that this action is exempt from or should be excluded from the bankruptcy

6

estate(s).” Dckt. No. 17 at 3. The court therefore ordered plaintiff and/or the bankruptcy

7

trustee(s) to substitute or join the bankruptcy trustee(s), or show the trustee’s ratification of this

8

action, pursuant to the requirements of Federal Rule of Civil Procedure 17(a)(3) on or before

9

April 29, 2011. Id. at 4. The order provided that “[i]f plaintiff and the bankruptcy trustee(s) fail

10

to comply with the Rule 17 requirements on or before April 29, 2011, the undersigned will

11

recommend that this action be dismissed with prejudice.” Id.

12

On April 29, 2011, Alan S. Fukushima, who has been appointed the Chapter 7

13

Bankruptcy Trustee in plaintiff’s involuntary bankruptcy case, filed a response to the April 14

14

order. Dckt. No. 18. Mr. Fukushima notes that motions to dismiss are currently pending in both

15

the involuntary and voluntary bankruptcy cases and contends that, until those matters are

16

resolved, “since the Involuntary Bankruptcy Case was filed first and an order for relief has been

17

entered in that case, the claims that [plaintiff] is asserting in the instant case are property of the

18

bankruptcy estate in the Involuntary Bankruptcy Case and Mr. Fukushima has the sole authority

19

to prosecute those claims.” Id. at 2. However, Mr. Fukushima contends that “it is unknown

20

whether [plaintiff] (who is represented by counsel in the Voluntary Bankruptcy Case) or the

21

Chapter 7 Trustee in the Voluntary Case will dispute that,” and notes that if so, “that issue will

22

need to be resolved, presumably by the Bankruptcy Court.” Id.

23

Mr. Fukushima notes that he has applied for employment of general counsel in the

24

involuntary bankruptcy case and contends that special litigation counsel will also need to be

25

located to represent the bankruptcy estate in prosecuting the instant lawsuit (and others). Id. at 3.

26

He contends that once special counsel is located, he anticipates “it will take approximately 60
2

1

days to obtain an order authorizing employment of special counsel, for special counsel to

2

become reasonably familiar with the facts and circumstances of the lawsuits, and for decisions to

3

be made as to the further prosecution of the lawsuits.” Id. Accordingly, Mr. Fukushima

4

“requests that the Court allow him a reasonable amount of time, not less than 60 days, for these

5

purposes and that the Court grant such other and further relief as is appropriate.” Id.

6

The undersigned construes Mr. Fukushima’s response as a request for a continuance of

7

the deadline for Rule 17 substitution, joinder, and/or ratification, as required by the April 14

8

order. Based on Mr. Fukushima’s representations regarding the numerous matters that must be

9

resolved before such substitution, joinder, and/or ratification may occur, the request will be

10

granted.

11

Accordingly, IT IS HEREBY ORDERED that:

12

1. The request by the Chapter 7 trustee in plaintiff’s involuntary bankruptcy case, Alan

13

Fukushima, for a continuance of the deadline for Rule 17 substitution, joinder, and/or ratification

14

is granted. See Dckt. No. 18.

15

2. On or before August 3, 2011, plaintiff and/or the bankruptcy trustee(s) shall substitute

16

or join the bankruptcy trustee(s), or show the trustee’s ratification of this action, pursuant to the

17

requirements of Federal Rule of Civil Procedure 17(a)(3).

18

3. If plaintiff and the bankruptcy trustee(s) fail to comply with the Rule 17 requirements

19

on or before August 3, 2011, the undersigned will recommend that this action be dismissed with

20

prejudice.

21

4. The status (pretrial scheduling) conference currently set for hearing on May 25, 2011

22

is continued to October 19, 2011 at 10:00 a.m. in Courtroom No. 24. Although the parties filed a

23

joint status report on February 22, 2011, Dckt. No. 11, further status reports shall be filed on or

24

before October 5, 2011.

25

////

26

////
3

1

5. Within five days of the date this order is filed, plaintiff shall serve a copy of this order

2

on the bankruptcy trustee in plaintiff’s Voluntary Bankruptcy Case and shall file a proof of such

3

service.

4

DATED: May 5, 2011.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4