Bartolini v. Smith

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF MISSOURI
In re: 	)
)
MARTIN W. SMITH 	) 	Case No. 03-31378-JWV
)
Debtor. 	)
)
ELIZABETH BARTOLINI, 	)
)
Plaintiff, 	)
vs. 	) 	Adversary Proceeding No. 04-3039
)
MARTIN W. SMITH, 	)
)
Defendant. 	)
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the motion to dismiss filed by the Defendant, Martin
W. Smith (“Debtor”) on September 30, 2004. The motion seeks the dismissal of this adversary on
the grounds that the Plaintiff’s complaint was not filed within 30 days of service of the Debtor’s
amended schedules, as required by Local Rule 1009-1. The Plaintiff, Elizabeth Bartolini, maintains
that she timely filed the complaint after she received notice of the bankruptcy.
For the reasons stated below, the Court will deny the Debtor’s motion to dismiss.
BACKGROUND
Although the parties have presented facts outside the pleadings in support of their respective
positions, those facts will not be considered inasmuch as this is a motion to dismiss and not a motion
for summary judgment. 	Fed. R. Bank. P. 7012; Fed. R. Civ. P. 12. 	Thus, the Court limits its
consideration to the record in these proceedings and facts admitted in pleadings:
1. 	The Debtor filed for protection under chapter 7 of the bankruptcy code on October 28, 2003.
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2. 	The first meeting of creditors was first set for hearing on December 11, 2003.
3. 	The Plaintiff was not listed as a creditor on the Debtor’s original bankruptcy schedules.
4. 	On March 24, 2004, the Debtor amended his “Schedule F” to list the Plaintiff as a creditor,
and served the amended schedules on Peter Sonderby, an attorney who represented the
Plaintiff in prior litigation against the Debtor.
5. 	The Plaintiff admits receiving notice of the amended schedules and the Debtor’s bankruptcy
on June 9, 2004.
6. 	On June 29, 2004, the Plaintiff filed in the main bankruptcy case a complaint to determine
the dischargeability of debt and for a general denial of discharge.
7. 	On July 2, 2004, the clerk’s office entered a text-order striking the complaint because it was
erroneously filed in the main case. The order instructed the Plaintiff to re-file the complaint
as a separate adversary proceeding.
8. 	The clerk’s records indicate that the Plaintiff was not sent notice of this order.
9. 	The Plaintiff filed the complaint initiating this adversary proceeding on August 24, 2004.
DISCUSSION
Based on the facts recited above, the Court finds that the Plaintiff’s complaint was timely
filed on August 24, 2004.
Local Rule 1009-1.4 provides that a debtor must serve amendments to schedules on all
affected creditors and provide those creditors with notice that § 523 and § 727 complaints must be
filed within 30 days after service of that notice. The Debtor claims that he complied with this rule
by serving the amended schedules (presumably with the requisite notice) on Peter Sonderby, an
attorney who represented the Plaintiff in prior litigation against the Debtor. The Debtor served Mr.
Sonderby on or about March 24, 2004, so, the Debtor argues, the defective complaint filed on June
29, 2004 (and, a fortiori, the August 24, 2004 complaint) was untimely. The Plaintiff counters that
service on Mr. Sonderby was ineffective because the Debtor sent it to the wrong address. 	But
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whether or not the service was sent to the correct address is irrelevant - service on Mr. Sonderby was
ineffective. Mr. Sonderby has never entered an appearance for the Plaintiff in these proceedings,
and without proof of when Mr. Sonderby communicated the notice of the Debtor’s bankruptcy to
the Plaintiff, we cannot find that service on Mr. Sonderby was effective to start the 30-day clock of
Local Rule 1009-1 ticking. The clock did start, though, on June, 9, 2004, the day the Plaintiff admits
receiving notice of the amended schedules.
This leaves two questions to be answered. First, did the complaint erroneously filed on June
26, 2004, in the main bankruptcy case stop the 30-day clock? And second, did the clock start ticking
again after the erroneously filed complaint was stricken? 	We answer the first question in the
affirmative and the second in the negative.
The deadlines in rules 4004(a), 4007(c), and by implication, 1009-1, are not jurisdictional,
but, rather, akin to statutes of limitation subject to equitable tolling. See In re Harbaugh, 301 B.R.
317, 320 (B.A.P. 8 th Cir. 2003) (citing Block v. Moss (In re Moss), 266 B.R. 408, 414 (8th Cir.
2001)). And the filing of a timely, although defective, pleading warrants equitable tolling. Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (note and
citations omitted). Therefore, the complaint erroneously filed in the main case within 30 days after
the Plaintiff received notice of the amended schedules tolled the 30-day deadline imposed by Local
Rule 1009-1.
On July 2, 2004, the complaint filed in the main case was stricken, so the 30-day clock
arguably began to run again. The docket indicates, however, that the clerk’s office (inexplicably)
did not give the Plaintiff notice of the order striking the complaint, and the record in this matter does
not contain any evidence showing when the Plaintiff received notice of the defective filing, so we
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have no basis to find that the 55-day delay between the striking of the defective complaint and the
filing of the adversary proceedings was unwarranted, inordinate, or unreasonable. 	We also note
that even if the Plaintiff had received immediate notice of the defective filing, under the
circumstances, the complaint would likely stand because the Court does not believe that the debtor
has been prejudiced by the delay.
Therefore, for the reasons stated above, it is
ORDERED that Martin W. Smith’s Motion to Dismiss is hereby DENIED.
SO ORDERED this 3 rd day of November, 2004.
/s/ 	Jerry W. Venters
United States Bankruptcy Judge
cc: Stuart King
Spencer Desai
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