Borges v. Thomas F. Farrell, P.C.

Filing 33

ORDER; 28 Unopposed Motion to Dismiss for Lack of Jurisdiction is DENIED. 29 Motion to Substitute Bankruptcy Trustee as Plaintiff is GRANTED and that the Trustee, Lynn Martinez, is SUBSTITUTED as the realy party in interest for Plaintiff Diane Borges. The Clerk of Court shall amend the case caption accordingly, by Magistrate Judge Kristen L. Mix on 12/17/2012.(klmcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03394-KLM
DIANE BORGES,
Plaintiff,
v.
THOMAS F. FARRELL, P.C., doing business as Farrell & Seldin,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Unopposed Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(1) [Docket No. 28; Filed October 31, 2012] (the “Motion
to Dismiss”) and the Motion to Substitute Bankruptcy Trustee as Plaintiff [#29; Filed
November 6, 2012] (the “Motion to Substitute”) filed by Lynn Martinez, as Trustee of
Plaintiff’s Bankruptcy Estate, through counsel (the “Trustee”). On November 16, 2012, the
Trustee filed a Response to Motion to Dismiss [#32]. Neither Plaintiff nor Defendant filed
a reply in support of the Motion to Dismiss, nor did either party file a response to the Motion
to Substitute.
Plaintiff initiated this action against Defendant on December 28, 2011, asserting a
violation of Section 1692e(13) of the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq. [#1]. On February 17, 2012, Defendant filed his Answer and
Counterclaim. [#5]. The counterclaim was subsequently dismissed. [#23]. Plaintiff then

-1-

filed a bankruptcy petition on August 28, 2012. [#28] at 2.
In the Motion to Dismiss, Defendant acknowledges that as a result of Plaintiff’s
bankruptcy filing, the Trustee was appointed in the bankruptcy proceedings to oversee the
bankruptcy estate and, “became the real party in interest with regard to Plaintiff’s claims
asserted herein.” [#28] at 2. At the time Defendant filed the Motion to Dismiss, the Trustee
had not yet moved to substitute for Plaintiff in this action. Accordingly, Defendant asked
that the case be dismissed if after a reasonable time the Trustee failed to request
substitution. [#28] at 4.
The Trustee then filed the Motion to Substitute one week after the Motion to Dismiss
was filed. The Trustee seeks substitution pursuant to Fed. R. Civ. P. 17(a)(3). The Trustee
asserts in the Motion to Substitute that both Plaintiff and Defendant agree that, as a result
of the bankruptcy filing, Plaintiff is no longer the real party in interest in this case. [#29] at
2. Having failed to file a response to the Motion to Substitute, Plaintiff and Defendant
apparently do not oppose the request.
Fed. R. Civ. P. 17(a)(3) provides:
The court may not dismiss an action for failure to prosecute in the name of
the real party in interest until, after an objection, a reasonable time has been
allowed for the real party in interest to ratify, join, or be substituted into the
action. After ratification, joinder, or substitution, the action proceeds as if it
had been originally commenced by the real party in interest.
Here, the Court finds that pursuant to Rule 17(a)(3), substitution of the Trustee in
this action is appropriate. There is no dispute that in light of Plaintiff’s bankruptcy petition,
the Trustee is now the real party in interest for purposes of prosecuting this action.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Dismiss [#28] is DENIED.
-2-

IT IS FURTHER ORDERED that the Motion to Substitute [#29] is GRANTED and
that the Trustee, Lynn Martinez, is SUBSTITUTED as the real party in interest for Plaintiff
Diane Borges. The Clerk of Court shall amend the case caption accordingly.
Dated: December 17, 2012

-3-