Keith v. Waller and Womack, P.C. et al

Filing 18

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. GRANTING 8 Motion to Dismiss for Lack of Jurisdiction; GRANTING 11 Motion to Dismiss; GRANTING 14 Motion to Substitute Party and 14 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Richard F. Cebull on 4/8/2013. (Copy mailed to Pro Se Plaintiff) (ACL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

PHILIP KEITH,

Case No. CV-12-163-BLG-RFC

Plaintiff,
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE

vs.
WALLER AND WOMACK, P.C.,
ELI PATTEN, and NEAL JENSEN,
United States Trustee,
Defendants.

Plaintiff Phillip Keith filed this action prose against Waller & Womack,
P.C., the firm of the Court-appointed Chapter Seven Trustee for Keith's
bankruptcy estate, Eli Patten, the Trustee's legal counsel, and Neal Jensen, the
United States Trustee. All claims relate to Keith's bankruptcy proceedings.
Waller & Womack and Patten have moved to dismiss the claims against them
(docs. 8 & 11) and United States Magistrate Judge Carolyn S. Ostby has
recommended the motions be granted and Keith's Complaint (doc. 2) be dismissed
without prejudice.
Keith's asserts various state law causes of action, claiming Defendants
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engaged in misconduct during the bankruptcy proceedings that caused him to be
indicted under 18 U.S.C. 1014 for making false statements to a federally insured
financial institution. See United States v. Keith, CR-12-50-BLG-RFC. Although
Judge Ostby correctly determined Keith's Complaint should be dismissed pursuant
to L.R. 7.1 (d)( 1)(B) because Keith failed to respond to the motions to dismiss, she
also indicated that this likely Court lacks subject matter over Keith's claims. Doc.
13, p. 8. Specifically, parties must obtain leave of the bankruptcy court before
filing suit against a bankruptcy trustee or other officer appointed by the
bankruptcy court for acts done in the officer's official capacity. In re Crown
Vantage, Inc., 421 F.3d 963, 970 (9th Cir. 2005). Keith's failure to obtain such

leave is therefore fatal to his claims in this case.
Although Keith was afforded 14 days to object to Judge Ostby's Findings
and Recommendations, Fed.R.Civ.P. 72(b)(2) & L.R. 72.3(b), he again failed to
object or respond in any way. Although this failure to object waives all objections
to Judge Ostby's findings of fact, Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.
1999), this Court must review de novo any conclusions of law. Barilla v. Ervin,
886 F.2d 1514, 1518 (9th Cir. 1989).
After such a review, the Court finds Magistrate Judge Ostby's Findings and
Recommendation to be correct in law and in fact and adopts them in their entirety.

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Accordingly, IT IS ORDERED that Waller & Womack's and Patten's
motions to dismiss (docs. 8 & 11) are GRANTED.
As the United States has represented that Keith consents to its motion to
substitute the United States for Neal G. Jensen and to dismiss for lack of subject
matter jurisdiction (doc. 17), IT IS FURTHER ORDERED that the United
States' motion (doc. 14) is GRANTED.
The United States is substituted for United States Trustee Neal Jensen and
Keith's Complaint (doc. 2) is DISMISSED WITHOUT PREJUDICE.
The Clerk of Court shall notify the parties of the entry of this Order and
close this case.
DATED the

~---

cz;

day of April, 2013. ,/'
/

{HARD F. CEBULJ.
Senior U.S. District Judge

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