Elsaesser v. Ioane et al

SUMMARY ORDER - 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF IDAHO
IN RE 	)
)
GERALD LINDSEY and 	) 	Case No. 03-21652-TLM
ONA LINDSEY, 	)
) 	SUMMARY ORDER
Debtors. 	)
________________________________ 	)
)
)
J. FORD ELSAESSER, Trustee, 	)
)
Plaintiff, 	)
)
vs. 	) 	Case No. 04-6098-TLM
)
MICHAEL SCOTT IOANE, et al, 	)
)
Defendants. 	)
________________________________ 	)
On May 5, 2005, the Court ordered certain parties in this adversary
proceeding (Defendants Nevak Mining LLC, LT & L, Inc., and Gerald and Ona
Lindsey, all represented by attorney Britt Groom, and Defendants Michael Scott
Ioane and Glenn Halliday, appearing pro se) to provide the Court with authorities
and analysis regarding their demands for jury trials. See Doc. No. 453 (briefing
order); see also Doc. Nos. 420, 421, 422 and 446 (answers containing demands for
jury trial). The time provided for those parties to file those briefs (14 days) and for
any response from the Plaintiff Trustee (10 days) has expired. Nothing whatsoever
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SUMMARY ORDER - 2
has been filed.
The Court’s briefing order instructed the parties to identify the claims or
causes of action they believed were subject to jury trial, and to provide citation to
and analysis of applicable legal authority. The Court gave the Defendants ample
opportunity to comply with the briefing order. The Defendants failed to comply.
This Court has stated that a jury trial may only be allowed in bankruptcy “if
the requesting party can demonstrate that the action is historically one brought at
law, rather than in equity; that the remedy request[ed] . . . is legal, rather than
equitable; and the party’s right of action is ‘public’ versus ‘private’.” Fitzgerald v.
Mason (In re Mason), 96.1 I.B.C.R. 18 (Bankr. D. Idaho 1996) (citing
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1990)); see also Whittier v. Key
Bank of Idaho (In re Whittier), 94 I.B.C.R. 31 (Bankr. D. Idaho 1994) (similar).
That the issues can be complex and difficult is amply illustrated by these decisions
and by the dozens of other reported decisions addressing the question of jury trials
in bankruptcy cases.
Here the Defendants have not complied with an express order of the Court.
By failing to make submissions in accord with the briefing order, these Defendants
provide no assistance to the Court in understanding the basis for their claims to a
right of jury trial and no support for their demands thereto. They have not
otherwise demonstrated that the facts, pleadings and case law support the claim of
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SUMMARY ORDER - 3
a right to a jury trial. The failure, under the circumstances, amounts to a waiver of
the asserted right.
Therefore, the Court concludes, based on the record before it, that these
Defendants’ requests and demands for jury trial shall be, and the same hereby are
DENIED. The bench trial shall occur as presently scheduled.
DATED: 	June 3, 2005
TERRY L. MYERS
CHIEF U. S. BANKRUPTCY JUDGE
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SUMMARY ORDER - 4
CERTIFICATE RE: SERVICE
A “notice of entry” of this Decision, Order and/or Judgment has been
served on Registered Participants as reflected by the Notice of Electronic Filing.
A copy of the Decision, Order and/or Judgment has also been provided to non-
registered participants by first class mail addressed to:
Michael S. Ioane
1735 East Bayshore Road, Suite 3A404
Redwood City, CA 	94063
Glen Halliday
1735 East Bayshore Road, Suite 3A404
Redwood City, CA 	94063
Case No. 04-6098 (Elsaesser v. Ioane)
Dated: June 3, 2005
/s/Jo Ann B. Canderan
Judicial Assistant to Chief Judge Myers
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