Hinze v. Watkins

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE 	)
)
KEITH R. HINZE, 	) 	CASE NO. 10-80637-G3-7
)
Debtor, 	)
)
KEITH R. HINZE, 	)
)
Plaintiff, 	)
v. 	) 	ADV. NO. 11-8017
)
CHARLES K. WATKINS, 	)
)
Defendant. 	)
MEMORANDUM OPINION
The court has considered the "Plaintiff Debtor's Motion
for Summary Judgment" (Docket No. 8) and the "Defendant's
Response to Summary Judgment and Notice for Cross Summary
Judgment" (Docket No. 10). 	The court heard argument on the
instant motions at a pretrial conference held on June 26, 2012.
The following are the Findings of Fact and Conclusions of Law of
the court. 	A separate Judgment will be entered denying the
motions. 	To the extent any of the Findings of Fact are
considered Conclusions of Law, they are adopted as such. 	To the
extent any of the Conclusions of Law are considered Findings of
Fact, they are adopted as such.
Findings of Fact
Keith R. Hinze ("Debtor") filed a voluntary petition
under Chapter 7 of the Bankruptcy Code on October 29, 2010.
ENTERED
07/17/2012
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In the instant adversary proceeding, Debtor seeks
damages based on Defendant's alleged violation of the Debtor's
discharge.
In the instant motions, Debtor seeks summary judgment
as a result of alleged deemed admissions arising from Defendant's
failure to respond to discovery. 	Defendant seeks summary
judgment on grounds Debtor cannot meet his burden of proof.
Both Debtor and Defendant support their respective
motions with voluminous documents. 	Neither party sets forth how
any of the documents relate to the party's respective argument
for or against summary judgment. 	Among the 63 pages of documents
submitted by Debtor, the only authenticated documents are one
affidavit of Debtor and two affidavits of Debtor's counsel, as
well as certified copies of two state court pleadings. 	Among the
141 pages of documents submitted by Defendant, the only
authenticated document is this court's order lifting stay.
Conclusions of Law
Rule 56(a) of the Federal Rules of Civil Procedure, as
made applicable by Bankruptcy Rule 7056, provides that the court
shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. 	Rule 56(a), Fed. R.
Civ. P.
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Rule 56(c)(1) of the Federal Rules of Civil Procedure,
as made applicable by Bankruptcy Rule 7056, provides:
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by
(A) citing to particular parts of materials in the
record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made
for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Rule 56(c)(1), Fed. R. Civ. P.
Rule 56(c)(4) of the Federal Rules of Civil Procedure,
as made applicable by Bankruptcy Rule 7056, provides that an
affidavit or declaration used to support or oppose a motion must
be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated. 	Rule 56(c)(4), Fed.
R. Civ. P.
Rule 56(c)(4) of the Federal Rules of Civil Procedure,
as made applicable by Bankruptcy Rule 7056, provides that the
court need consider only the cited materials, but it may consider
other materials in the record. 	Rule 56(c)(3), Fed. R. Civ. P.
A party seeking summary judgment must demonstrate: (i)
an absence of evidence to support the non-moving party’s claims
or (ii) an absence of a genuine dispute of material fact.
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Sossamon v. Lone Star State of Tex., 560 F.3d 316 (5th Cir.
2009); Warfield v. Byron, 436 F.3d 551 (5th Cir. 2006). 	The
court views the facts and evidence in the light most favorable to
the non-moving party at all times. 	Campo v. Allstate Ins. Co.,
562 F.3d 751 (5th Cir. 2009).
Each of the rules in the Federal Rules of Civil
Procedure addressing discovery (Rule 33(a)(1), as made applicable
by Bankruptcy Rule 7033, as to interrogatories; Rule 34(a) as
made applicable by Bankruptcy Rule 7034, as to requests for
production; and Rule 36(a)(1), as made applicable by Bankruptcy
Rule 7036, as to requests for admission) provides that the
parties "may serve" their respective discovery requests.
Rule 5(b)(2) of the Federal Rules of Civil Procedure,
as made applicable by Bankruptcy Rule 7005, governs service of
pleadings and other papers. 	With respect to electronic
transmissions, Rule 5(b)(2)(E) provides:
(2) Service In General. 	A paper is served under this rule
by:
(E) sending it by electronic means if the person
consented in writing--in which event service is
complete upon transmission, but is not effective if the
serving party learns that it did not reach the person
to be served.
Rule 5(b)(2)(E), Fed. R. Civ. P.
In the instant adversary proceeding, nothing in the
record establishes that Defendant consented in writing to receive
service of discovery by electronic means. 	Nothing in the record
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establishes that the parties conferred before Debtor propounded
discovery. 	Additionally, none of the documents purported by
Debtor to establish the facts regarding discovery matters in the
instant adversary proceeding were authenticated. 	The court
concludes that Debtor is not entitled to summary judgment on
grounds of deemed admissions.
As to Defendant's motion, the motion does not contain
citations to the record to support Defendant's assertions. 	Taken
in a light most favorable to the non-moving party, Defendant has
not established the absence of a genuine dispute, or shown that
Debtor cannot produce admissible evidence to support the facts
alleged. 	The court concludes that Defendant is not entitled to
summary judgment.
Based on the foregoing, a separate Judgment will be
entered denying the "Plaintiff Debtor's Motion for Summary
Judgment" (Docket No. 8) and the "Defendant's Response to Summary
Judgment and Notice for Cross Summary Judgment" (Docket No. 10).
Signed at Houston, Texas on July 17, 2012.
LETITIA Z. PAUL
UNITED STATES BANKRUPTCY JUDGE
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