Tillimon v. Mack et al

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
In Re:
Floyd H. Mack, Jr., and
Pamela C. Mack,
Debtors.
Duane J. Tillimon,
Plaintiff,
v.
Floyd H. Mack, Jr., et al.,
Defendants.
) 	Case No.: 12-30409
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) 	Chapter 7
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) 	Adv. Pro. No. 12-3089
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) 	Hon. Mary Ann Whipple
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ORDER REGARDING MOTION TO AMEND COMPLAINT
This adversary proceeding is before the court on Plaintiff’s motion to amend his complaint [Doc.
# 22], as supplemented by the filing of his proposed amended complaint [Doc. # 43], Defendant’s response
[Doc. # 44], and Plaintiff’s reply [Doc. # 45]. For the following reasons, the court will grant in part and
deny in part Plaintiff’s motion to amend.
Plaintiff timely filed his complaint on June 5, 2012. The deadline in Defendants’ underlying Chapter
7 case for filing complaints objecting to discharge or to determine the dischargeability of debts under 11
U.S.C. § 523(a)(2),(4) or (6) was June 5, 2012. See 11 U.S.C. § 523(c)(1); Fed. R. Bankr. P. 4004(a),
the record of the United States Bankruptcy Court for the Northern District of Ohio.
of this court the document set forth below. This document has been entered electronically in
The court incorporates by reference in this paragraph and adopts as the findings and orders
Dated: October 10 2012
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4007(c). Plaintiff filed his motion to amend the complaint on July 13, 2012.
Rule 15 of the Federal Rules of Civil Procedure, made applicable to this proceeding by Federal Rule
of Bankruptcy Procedure 7015, governs the amendment of pleadings. Where the time limit for filing a new
claim has passed, Rule 15(c) allows the amended pleading to relate back to the date of the original
complaint, provided the claim arises out of “the conduct, transaction or occurrence set out – or attempted
to be set out – in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).
In his original complaint, Plaintiff seeks in his first cause of action to except from Debtor Floyd
Mack, Jr.’s, Chapter 7 discharge a debt owed to him in the amount of $1,991.00 resulting from a state court
judgment for passing a bad check. In his second and third causes of action, Plaintiff alleges claims relating
to allegations that Debtors provided information that was incorrect in their bankruptcy petition and
schedules.
In his proposed amended complaint, Plaintiff seeks to add more specific factual allegations to his
first cause of action and to add an additional non-dischargeability claim. 	Although Plaintiff’s original
complaint was timely filed, the time to assert an exception to dischargeability has now expired and cannot
be extended by the court. 	See Fed. R. Bankr. P. 4007(c) and 9006(b)(3). 	Thus, Plaintiff’s proposed
amendments are time-barred unless they relate back to his original complaint.
Plaintiff’s proposed amendment to his first cause of action relates back to his original complaint
since it arises out of the same conduct and transaction as alleged therein, namely, the passing of a bad check
and the resulting state court judgment. However, Plaintiff’s proposed amendment does not relate back to
the extent he alleges an additional non-dischargeability claim. In that cause of action, Plaintiff alleges that
he obtained a judgment in state court in the amount of $11,124,53 for damage to certain rental property
caused by Defendants. The facts do not relate to any allegations in Plaintiff’s original complaint and seek
a nondischargeability determination with respect to an entirely different state court judgment. Plaintiff will
not be permitted to amend his complaint to include this claim since it is time-barred.
THEREFORE, for the foregoing reasons, good cause appearing,
IT IS ORDERED that Plaintiff’s motion to amend complaint [Doc. # 22] be, and hereby is,
GRANTED as to the proposed amendment of his first cause of action and DENIED as to his proposed
amendment adding the nondischargeability claim based on the state court judgment for damages to his rental
property; and
IT IS FURTHER ORDERED that Plaintiff shall separately 	file an amended complaint in
accordance with this order on or before October 26, 2012; and
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IT IS FURTHER ORDERED that Defendants shall file their answer or other response to the
amended complaint on or before November 26, 2012.
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