Dych v. VanBrocklin (In re VanBrocklin)

566 B.R. 90
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedMarch 6, 2017
DocketBANKRUPTCY CASE NO. 15-11761-WHD; ADVERSARY PROCEEDING NO. 15-1059-WHD
StatusPublished
Cited by3 cases

This text of 566 B.R. 90 (Dych v. VanBrocklin (In re VanBrocklin)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dych v. VanBrocklin (In re VanBrocklin), 566 B.R. 90 (Ga. 2017).

Opinion

IN PROCEEDINGS UNDER CHAP- ' TER 7 OF THE BANKRUPTCY CODE

ORDER

W. Homer Drake, U.S. Bankruptcy Court Judge

Before the Court are the Motion to Dismiss Plaintiffs Complaint for Failure to Prosecute and the Motion for Judgment on the Pleadings filed by James P. VanBrock-lin (hereinafter the “Debtor”) in the above-styled adversary proceeding. These motions arise in connection with the complaint of Jennifer Dych and Ray Caron (hereinafter the “Plaintiffs”) objecting to the Debtor’s receipt of a discharge. This is a core proceeding, see 28 U.S.C. § 157(b)(2)(J), over which this Court has subject matter jurisdiction, see 28 U.S.C. §§ 157(a), 1334.

Motion to Dismiss for Failure to Prosecute

The Debtor’s first motion seeks dismissal of the Plaintiffs’ complaint pursuant to Federal Rule of Civil Procedure 41, which allows a court to dismiss a proceeding due to a plaintiffs failure to prosecute. See Fed. R. Civ. P. 41(b); see also Fed. R. Bankr. P. 7041 (incorporating Rule 41 into adversary proceedings). In this District, there is also a local rule governing dismissal for failure to prosecute. See BLR 7041-1. The local rule allows dismissal if “[a] plaintiff or movant willfully fails or refuses to make an adversary proceeding or contested matter ready or refuses to cause same to be made ready for placement on the trial calendar.” BLR 7041 — 1(a)(1). Dismissal for want of prosecution is an extreme sanction that should only be imposed in situations in which it is necessary. See Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337-39 (11th Cir. 2005); Justice v. United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993).

The Debtor claims that dismissal for failure to prosecute is necessary because he believes that the Plaintiffs have engaged in “a pattern of inaction.” The Debtor points to the fact that the Plaintiffs filed their complaint on November 16, 2015, and since' that time have only filed one motion (a motion to strike, which this Court granted in part and denied in part on March 7, 2016). Additionally, the Debt- or asserts that the Plaintiffs have not sought any discovery from him.

While the Court acknowledges that the docket in this proceeding is not teeming with activity, there is not sufficient cause to dismiss this proceeding for failure to prosecute. Though the docket does not indicate that the Plaintiffs have sought discovery from the Debtor, they have clearly engaged in discovery in this proceeding, as shown by the five subpoena notices they have filed. (See Doc. Nos. 15-19). In addition, the Plaintiffs complied with this Court’s Order of December 20, 2016, directing them to file a status report after a long period of inactivity. (See Doc. No. 22; Status Report, Doc. No. 27). In light of these facts, the Court finds that dismissal for want of prosecution is not appropriate at this time.

Motion for Judgment on the Pleadings

A. Judgment on the Pleadings Standard

Federal Rule of Civil Procedure 12(c) allows a party to “move for judgment on the pleadings.” Fed. R. Civ. P. 12(c); see also Fed. R. Bankr. P. 7012(b) (incor[95]*95porating Rule 12(b)-(i) into adversary proceedings). “Judgment on the pleadings ... is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts.” Horsley v. Rivera, 292 F.3d 695, 700 (11th Cir. 2002); accord Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998); Bank of Camilla v. St.. Paul Mercury Ins. Co., 939 F.Supp.2d 1299, 1303 (M.D. Ga. 2013). In reviewing a motion for judgment on the pleadings filed by a defendant, a court should treat the factual statements in the complaint as true and make all inferences in favor of the non-moving plaintiff. See Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 137 F.3d 1293, 1295 (11th Cir. 1998).

“The standard of review for a motion for judgment on the pleadings ‘is almost identical to that used to decide motions to dismiss.’ ” Bank of Camilla, 939 F.Supp.2d at 1303 (quoting Doe v. Bd. of Cnty. Comm’rs, 815 F.Supp. 1448, 1449 (S.D. Fla. 1992)); see also Turbe v. Gov’t of Virgin Islands, 938 F.2d 427, 428 (3rd Cir. 1991) (“Rule 12(h)(2) provides that a defense of failure to state a claim upon which relief can be granted may also be made by motion for judgment on the pleadings. In this situation, we apply the same standards as under Rule 12(b)(6).”). Consequently, the Court’s analysis on this motion will focus on whether the Plaintiffs’ complaint contains sufficient factual allegations “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); accord Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (per curiam). If the Court concludes that the Plaintiffs “would not be entitled to relief under any set of facts that could be proved consistent with the allegations,” the Court will dismiss the complaint. See Horsley, 292 F.3d at 700.

With these guiding principles in mind, the Court turns to the allegations in the Plaintiffs’ complaint.

B. Background

Accepting the allegations in the Plaintiffs complaint as true, the facts of this proceeding are as follows. The Debtor and Plaintiff Ray Caron were officers and co-owners of two companies: Axiom Laboratories, LLC (hereinafter “Laboratories”), and Axiom Nutraceuticals, LLC (hereinafter “Nutraceuticals”). In 2014, Laboratories acquired the assets of Metaugus, Inc. (hereinafter “Metaugus”) by way of a sale conducted as part of Metaugus’s Chapter 11 Bankruptcy case.

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Bluebook (online)
566 B.R. 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dych-v-vanbrocklin-in-re-vanbrocklin-ganb-2017.