Ciccimaro v. Emore et al

UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In re 	: 	Chapter 7
EUGENE CICCIMARO 	:
Debtor 	: 	Bankruptcy No. 03-35430
____________________________________
EUGENE CICCIMARO 	:
Plaintiff 	:
v. 	:
JACQUELINE F. EMORE and 	:
MARIA EMORE CICCIMARO 	Adversary No. 06-0295
Defendants 	:
____________________________________
.................................................
MEMORANDUM
.................................................
Defendant Jacqueline F. Emore has filed a motion to dismiss this adversary
proceeding, contending that the plaintiff either seeks an advisory opinion, or that the
issues posed can and should be decided by state court. Defendant Maria Ciccimaro seeks
summary judgment for the same reasons. The plaintiff opposes dismissal or summary
judgment, contending that there are material facts in dispute, that no advisory opinion is
sought, and that his complaint states a cause of action which must be first resolved in this
court before any further adjudication is undertaken by the parties in state court.
From the pleadings and arguments of counsel, it is clear that this adversary
proceeding is the outgrowth of a divorce action currently pending in the Montgomery
County Court of Common Pleas. It is further apparent that the proceeding involves the
equitable distribution of marital property and the effect, if any, upon that distribution by
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the existence of a state court judgment entered in favor of defendant Emore against
defendant Ciccimaro and by the plaintiff’s chapter 7 bankruptcy discharge.
In his complaint, the plaintiff alleges that defendant Emore has attempted to
collect her judgment claim against the proceeds of marital property in violation of the
bankruptcy discharge entered in March 2004. He further avers that defendant Ciccimaro
has sought to violate the discharge injunction by asserting a credit against the marital
property of those claims discharged in the plaintiff’s bankruptcy, but for which she
remains liable, such as the Emore judgment. These actions of the defendants are alleged
by the plaintiff to be in violation of 11 U.S.C. § 524(a).
I heard oral argument on the two motions filed by the defendants. Certain
representations of counsel were made at the hearing which, if accepted as true, may affect
the outcome of these two motions. For example, at oral argument, the parties agreed that
this dispute concerns the proceeds of a sale of realty, currently being held by a title
company. In addition, counsel for defendants Emore and Ciccimaro explained how their
clients would attempt to treat the debtor’s bankruptcy discharge in state court in a manner,
they believe, consistent with the discharge injunction. They also argue that the state court
is fully capable of giving effect to the plaintiff’s bankruptcy discharge.
The plaintiff concedes that it is appropriate for the state court to render a
final decision on the question of equitable division of marital property. However, he
contends that the actions of the defendants in state court are improper attempts to
circumvent the legal effect of his bankruptcy discharge.
The current procedural posture renders a determination of these pending
motions somewhat problematic but readily correctable.
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First, defendant Emore stated at oral argument that her motion was based
upon Fed. R. Bankr. P. 7012, incorporating, inter alia, Fed. R. Civ. P. 12(b)(6), for
plaintiff’s failure to state a claim. However, prior to filing this motion, she had filed an
answer and counterclaim to plaintiff’s complaint. Rule 12(b) states that dismissal
motions should be filed “before pleading.” Thus, technically, a motion to dismiss under
Rule 12(b)(6) cannot be considered if filed after an answer is filed. See, e.g., Only v.
Ascent Media Group, LLC, 2006 WL 2865492, at *7 (D.N.J. 2006) (“Because Plaintiff
Only answered Defendant Ascent Media's Complaint in Docket No. 06-2374 on June 5,
2006, he has improperly filed a Motion to Dismiss.”); Broadcast Employees v.
International Brotherhood of Teamsters, 419 F.Supp. 263, 275 n.15 (E.D. Pa. 1976);
Vassardakis v. Parish, 36 F. Supp. 1002, 1003 (S.D.N.Y. 1941).
Second, defendant Ciccimaro’s summary judgment motion under Fed. R.
Bankr. P. 7056, incorporating Fed. R. Civ. P. 56, is, as plaintiff contends, also technically
defective. Summary judgment is only appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The summary judgment
motion was not accompanied by any affidavits, depositions, answers to interrogatories or
admissions. And the pleadings filed in this court by themselves would be insufficient to
grant summary judgment.
It was clear from the defendants’ counsels’ oral arguments that both
defendants’ motions were relying upon copies of state court pleadings submitted at an
earlier hearing on the debtor’s motion to reopen this chapter 7 bankruptcy case. That
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dispute was technically a contested matter under Fed. R. Bankr. P. 5010 and 9014, which
is distinct from the present adversary proceeding triggered by a complaint. And it was
further clear at oral argument that plaintiff’s counsel took the position that these
documents were not of record for purposes of the two pending motions.
Whether or not the plaintiff’s position regarding those state court pleadings
is overly technical, I can insure that all parties have adequate notice and full benefit of all
legitimate procedural provisions before adjudicating these two motions. In essence, I
shall treat both motions as requesting summary judgment, relying upon facts outside the
plaintiff’s complaint, see Fed. R. Civ. P. 12(b), and afford plaintiff sufficient opportunity
to respond. All parties will be placed on notice that the copies of the state court pleadings
and docket submitted in the earlier contested matter shall be made part of the record for
purposes of defendants’ motions for summary judgment.
Therefore, the following appropriate order shall be entered.
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UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In re 	: 	Chapter 7
EUGENE CICCIMARO 	:
Debtor 	: 	Bankruptcy No. 03-35430
____________________________________
EUGENE CICCIMARO 	:
Plaintiff 	:
v. 	:
JACQUELINE F. EMORE and 	:
MARIA EMORE CICCIMARO 	Adversary No. 06-0295
Defendants 	:
____________________________________
.................................................
ORDER
.................................................
AND NOW, this 16th day of January 2007, for the reasons stated in the
accompanying memorandum, it is hereby ordered as follows:
1. Pursuant to Fed. R. Civ. P. 12(b), incorporated into adversary
proceedings by Fed. R. Bankr. P. 7012, I hereby notify all parties that I shall treat
defendant Emore’s motion to dismiss as though it were a motion for summary judgment.
Thus, there are now two pending motions for summary judgment in this proceeding.
2. I hereby notify all parties that all of the state court pleadings entered of
record in the earlier contested matter are part of the record for summary judgment
purposes in this adversary proceeding. That record can be amplified by parties as
provided in Rule 56.
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3. Third, defendants shall have until January 26, 2007 to file and serve any
affidavits or other documents, in conformity with Rule 56(e), in support of the summary
relief requested. The positions taken by defendants’ counsel regarding their clients’
intentions in state court will only be considered if submitted as part of an affidavit by the
defendant. Furthermore, unless defendant Emore argues otherwise, I shall treat her
request for dismissal of this proceeding as also agreeing to dismissal of her counterclaim
against the plaintiff were the plaintiff’s claim against her dismissed.
4. The plaintiff shall have until Feb 8, 2007 to file and serve counter-
affidavits and other documents, also in conformity with Rule 56(e). Any discovery by
plaintiff in opposition to summary judgment must be completed so this submission
deadline can be met.
It is further ordered that having heard extensive arguments of counsel, I do
not believe it necessary to schedule any further oral argument on these motions. Thus,
there will be no further hearings on these two motions unless a party in interest so
requests and presents a persuasive reason that further argument is warranted. However, if
any party desires to supplement their previously filed legal memorandum, they are free to
do so within the deadlines for submissions set out above.
BRUCE FOX
United States Bankruptcy Judge
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copies to:
David A. Scholl, Esq.
Regional Bankruptcy Center of SE PA
Law Office of David A. Scholl
6 St Albans Avenue
Newtown Square, PA 19073
Carole L. Hendrick, Esq.
Attorney at Law
3927 Mill Road
Collegeville, PA 19426
Christina M. Rogomentick, Esq.
Willig, Williams & Davidson
1814 Chestnut Street
Philadelphia, PA 19103
Margaret S. Phiambolis, Esq.
1012 Bethlehem Pike, Suite 103
P.O. Box 356
Spring House, PA 19477
Scott M. Orloff, Esq.
Willig Williams & Davidson
1814 Chestnut Street
Philadelphia, PA 19103
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