Analytica Wire Inc.

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ANALYTICA WIRE, INC.,
Debtor.
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Case No. 08-00109
(Chapter 7)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER DISMISSING MOTION TO COMPEL
The debtor having withdrawn its opposition to the
involuntary petition filed by Glen Schroeder and other
petitioners, an order for relief has been signed granting the
involuntary. 	As a practical matter, that moots the motion to
compel filed by Schroeder with respect to discovery sought in
preparation for the anticipated trial of the involuntary
petition.
As to the discovery sought, there is no longer any need for
discovery because the order for relief has already been granted.
Similarly, the request for a recovery of fees and expenses
in pursuing the motion to compel will likely be moot because fees
and expenses can be recovered by filing a motion for allowance of
an administrative claim. 	By statute, the petitioners are
The document below is hereby signed.
Signed: December 09, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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1 	Such fees and expenses would appear to be recoverable
even if they would not have been imposed against the debtor as a
sanction under Fed. R. Civ. P. 37 for failing to comply with
discovery obligations (for example, because circumstances made
the failure substantially justifiable or other circumstances make
an award of expenses unjust).
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entitled to recover the actual, necessary expenses incurred in
pursuing the petition. 	11 U.S.C. § 503(b)(3)(A). 	In addition,
any attorney or accountant who rendered professional services to
the petitioners is entitled to recover reasonable compensation
for those services. 	11 U.S.C. § 503(b)(4). 1 	If the involuntary
petition had been dismissed, then it would make sense that
Schroeder would seek the recovery of sanctions from the debtor
(as he would not have the right to pursue them as an
administrative claim). 	But now that the involuntary petition has
been granted, and Schroeder has the right to pursue fees and
expenses as an administrative claim against the debtor’s assets
that become property of the estate, there does not appear to be a
practical reason for him to pursue recovery instead from the
debtor.
Theoretically the debtor could continue its existence after
the bankruptcy case is concluded, and fees and expenses
recoverable as sanctions, if not paid from the bankruptcy estate
because there are insufficient assets, could be recovered from
the debtor, but only in two unlikely scenarios: (1) if the debtor
were to ever acquire assets after the case is concluded, or (2)
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2 	Unscheduled assets not administered in the case would
remain property of the estate, 11 U.S.C. § 554(d), and collection
from them would be barred by the automatic stay of 11 U.S.C. §
362(a) absent a lifting of that stay.
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if scheduled but unadministered assets were abandoned. 2 	As a
practical matter, neither of those scenarios is likely to occur.
Moreover, the need to pursue the debtor outside of the bankruptcy
case will no longer exist if the fees and expenses are paid
within the bankruptcy case. 	Unless Schroeder signifies a desire
nevertheless to pursue a recovery from the debtor (as opposed to
the bankruptcy estate), I will assume that he is content to
pursue recovery of his fees and expenses from the debtor’s assets
comprising the bankruptcy estate by way of filing a motion for
allowance of an administrative claim.
It is accordingly
ORDERED that the motion to compel filed by Glen Schroeder is
dismissed without prejudice to the request for fees and expenses
that were incurred in pursuing the motion to compel being renewed
in the event that Schroeder, despite the right to pursue fees and
expenses as an administrative expense recoverable from the assets
of the estate, states a desire to pursue recovery of his fees and
expenses from the debtor (as opposed to looking only to the
bankruptcy estate).
[Signed and dated above.]
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4	O:\TEEL\Judge Temp Docs\Analytica Wire - Order Dismssing Mtn to Compel (Except Q of Atty Fees).wpd
Copies to: Debtor; Debtor’s attorney; Chapter 7 Trustee; Office
of United States Trustee; Glen Schroeder; Richard Fletcher;
Alexander Segal; Catherine Musinsky.
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