Golden v. Sound Inpatient Physicians Medical Group, Inc. et al

Filing 79

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/13/2016 ORDERING On or before 7/8/2016, plaintiff and/or the bankruptcy trustee shall substitute or join the bankruptcy trustee, or show the trustee's ratification of this action, pursuant to the requirements of FRCP 17(a)(3); if plaintiff and the bankruptcy trustee fail to comply with the Rule 17 requirements on or before 7/8/2016, the court will recommend that this action be dismissed with prejudice for failure to prosecute; the Clerk of Court is directed to serve a copy of this order on the bankruptcy trustee, Michael D. McGranahan, Modesto, CA, and on the US Trustee, Office of the US Trustee, Sacramento, CA. (cc: BK)(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OTASHE GOLDEN, M.D.,

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Plaintiff,

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v.

No. 2:14-cv-497-TLN-EFB PS

ORDER

SOUND INPATIENT PHYSICIANS
MEDICAL GROUP, INC, AND DOES 110, inclusive,

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Defendant.

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Plaintiff’s former counsel previously moved to withdraw as attorney of record in this case.

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ECF No. 71. The motion, which was granted, indicated that plaintiff had filed a Chapter 7

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bankruptcy petition.1 Id. In light of that pending bankruptcy action, any right to recover on the

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claim(s) in this case are the property of the bankruptcy estate and not plaintiff. Upon a

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declaration of bankruptcy, all of the debtor’s legal or equitable interests in property (includes

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causes of action) become the property of the bankruptcy estate. Manlangit v. Nat’l City Mortg.,

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2010 WL 2044687, at *1 (E.D. Cal. May 20, 2010) (citing 11 U.S.C. § 541(a)). Accordingly,

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plaintiff no longer has standing to proceed in this action. See id.; see also Switchboard Co. v.

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Westinghouse Elec. Corp., 789 F.2d 705, 707 (9th Cir. 1986); Rowland v. Novus Fin. Corp., 949

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F. Supp. 1447, 1453 (D. Haw. 1996) (holding claims under the Truth in Lending Act are included

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This case, in which plaintiff is now proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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as an interest under § 541(a)(1)). Therefore, “a bankruptcy petitioner loses standing for any

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causes of action and the estate becomes the only real party in interest unless the bankruptcy

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trustee abandons the claims” or the claims are exempt from the bankruptcy estate. Manlangit,

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2010 WL 2044687, at *1 (citing In re Lopez, 283 B.R. 22, 28-29 (9th Cir. 2002); In re Pace, 146

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B.R. 562, 565-66 (9th Cir. 1992)); Rowland, 949 F. Supp. at 1453.

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Plaintiff has not indicated that the bankruptcy trustee has abandoned the claim alleged

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herein or that this action is exempt from or should be excluded from the bankruptcy estate.

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Therefore, plaintiff and/or the bankruptcy trustee must either substitute or otherwise join as a

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party to this action, or show the trustee’s ratification of this action, pursuant to the requirements

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of Federal Rule of Civil Procedure 17(a)(3) (“The court may not dismiss an action for failure to

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prosecute in the name of the real party in interest until, after an objection, a reasonable time has

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been allowed for the real party in interest to ratify, join, or be substituted into the action. After

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ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by

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the real party in interest.”). If plaintiff and the bankruptcy trustee fail to do so, the court will

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recommend that this action be dismissed with prejudice for failure to prosecute.

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Accordingly, IT IS HEREBY ORDERED that:

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1. On or before July 8, 2016, plaintiff and/or the bankruptcy trustee shall substitute or join

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

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

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2. If plaintiff and the bankruptcy trustee fail to comply with the Rule 17 requirements on

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or before July 8, 2016, the court will recommend that this action be dismissed with prejudice for

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failure to prosecute.

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3. The Clerk of Court is directed to serve a copy of this order on the bankruptcy trustee,

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Michael D. McGranahan, at P.O. Box 5018, Modesto, CA 95352, and on the U.S. Trustee, Office

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of the U.S. Trustee, at 501 I Street, Room 7-500, Sacramento, CA 95814.

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DATED: June 13, 2016.

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