Kansas Department of Labor v. Hunter (In re Hunter)

552 B.R. 864
CourtUnited States Bankruptcy Court, D. Kansas
DecidedJune 9, 2016
DocketCase No. 15-21892; Adversary No. 15-06112
StatusPublished
Cited by1 cases

This text of 552 B.R. 864 (Kansas Department of Labor v. Hunter (In re Hunter)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kansas Department of Labor v. Hunter (In re Hunter), 552 B.R. 864 (Kan. 2016).

Opinion

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

Robert D. Berger, United States Bankruptcy Judge

Defendant moves to dismiss the instant proceeding under Fed. R. Bank. P. 7012 and Fed. R. Civ. P. 12(b)(4).1 The parties appear by counsel.2 The Court grants Defendant’s motion because Plaintiffs complaint was not timely filed under Fed. R. Bankr.P, 4007(c) and there are no grounds for an extension under Fed. R. Bankr.P. 4007(c) or Fed.R.Civ.P. 15.

VENUE AND JURISDICTION

This Court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C. §§ 157(a) and 1334(a) and (b) and the Amended Standing Order of Reference of the United States District Court for the District of Kansas that exercised authority conferred by 28 U.S.C. § 157(a) to refer to the District’s bankruptcy judges all matters under the Bankruptcy Code and all proceedings arising under the Code or arising in or related to a case under the Code, effective June 24, 2013.3 Furthermore, this Court may hear and finally adjudicate this matter because it is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). The parties do not object to venue or jurisdiction.

BACKGROUND

On November 23, 2015, the last day to

[867]*867file all U.S.C. § 523(c)4 complaint to determine dischargeability of a debt, the Kansas Department of Labor (Plaintiff) attempted to initiate an adversary proceeding against Tanisha Evon Hunter (Defendant) for a finding -that its claim against Defendant for fraudulently receiving unemployment benefit overpayments was nondischargeable under §§ 523(a)(2), (c)(1) and 1328. Plaintiff filed a Main Document, Exhibit, and Covef [sic] Sheet with the Court under the heading Complaint.5 However, Plaintiffs filings did not contain a complaint— only two copies of an insufficient cover sheet and an exhibit. Plaintiff also requested the issuance of a summons.6

On November 24, 2015, the Clerk of the Court issued three orders to correct defective pleadings because Plaintiff: (a) did not include the complaint; (b) did not complete the cover sheet; (c) did not complete the summons; and (d) did not pay the 28 U.S.C. § 1930 filing fee.7

On November 28, 2015, Plaintiff filed a second request for the issuance of a summons 8 and the Clerk of the Court issued a summons on November 30, 2015, requiring an answer by December 30, 2015.9 The filing fee was paid on November 30, 2015.

On December 2, 2015, Plaintiff filed a pleading titled Support Document.10 In actuality, Plaintiffs Support Document is Plaintiffs complaint.

On January 7, 2016, Defendant filed a motion to dismiss under Fed.R.Civ.P. 12(b)(4) and (6) and Fed. R. Bankr.P. 7012.11 Defendant asserts that Plaintiff did not properly commence the instant adversary action because: (a) no complaint was ever formally filed; (b) the earliest the action arguably commenced was December 2, 2015 — when Plaintiffs Support Document was filed; and (c) the November 30, 2016, summons was improper because no complaint was on file with the Court on November 30, 2016.12 Defendant requests dismissal for insufficient process under Fed.R.Civ.P. 12(b)(4) because the instant action is time barred under Fed.R.Civ.P. 12(b)(6) since Plaintiff did not commence these proceedings before the November 23, 2015, deadline to challenge the dis-chargeability of certain debts.13 Alternatively, Defendant seeks the Court’s permission to file a response out of time.

On January 19, 2016, Plaintiff responded arguing that the Defendant relies on facts that “do not conform to [the] requirement for establishing uncontroverted facts to permit the Court to entertain a fact-based dismissal....”14 Plaintiff asserts that “bankruptcy filings are limited and con[868]*868strained to the (almost always) accurate functioning of on-line digital transmission via CM/ECF.”15 Plaintiff blames several technical blunders for failing to meet the November 23, 2015, filing deadline. First, the dischargeability complaint on Plaintiffs sending computer did not attach but was somehow, in the filing process, substituted with the aforementioned insufficient cover sheet.16 Second, Plaintiffs firewall system when working from outside the office and line-latency are responsible for the failure of the complaint to be the initial filing in CM/ECF and the blank appearance of the filed forms.17 Plaintiff does not contest that an actual complaint was not filed on November 23, 2015, and admits that the complaint on Plaintiffs sending computer did not attach and “the forms appear blank in essential items.”18

Nevertheless, Plaintiff feels these failures are not detrimental to its claims because: (a) the Clerk’s orders to correct defective pleadings serve to provide a curative opportunity to bring filings in conformity with applicable rules and should relate back to the November 23, 2015, starting point; (b) any defects were cured because Defendant does not assert that she has not learned of the basis of Plaintiff s complaint or was not actually served;19 (c) the Bankruptcy Rules merely state that the complaint served be the same as the complaint filed;20 (d) Defendant has not suffered any prejudice by the timing of the foregoing events and future potential beneficiaries would be prejudiced if the foregoing complaint were dismissed based on technical difficulties;21 (e) the interests of justice weigh in favor of not dismissing the instant ease;22 and (f) the Defendant should have additional time to answer or respond to the complaint.23

ANALYSIS

In bankruptcy proceedings, Bankruptcy Rule 4007(a) allows a creditor to commence an adversary proceeding by “fil[ing] a complaint to obtain a determination of the dischargeability of any debt.”24 A complaint is the essential element that commences a civil action.

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Cite This Page — Counsel Stack

Bluebook (online)
552 B.R. 864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kansas-department-of-labor-v-hunter-in-re-hunter-ksb-2016.