AP notice received today ... scared ... stressed ... long story thanks for helping

[scbendel]

Hearing notice sent today. August 6th. What happens at this initial hearing?

[despritfreya]

Hearing notice sent today. August 6th. What happens at this initial hearing?

Depends upon your Judge. This is likely a Rule 16 Scheduling Conference. If the Notice you received does not include a "standing order" directing the parties to comply with Rule 7016, Fed. R. Bankr. P. (which directs you to Rule 16 Fed. R. Civ. P.) you should check your Judge's procedures:

http://www.azb.uscourts.gov/default.aspx?PID=65

If the link works, find your Judge, click on his/her name and scroll through until you find something that explains procedures in Adversary Proceedings.

Des.

[scbendel]

Hello again Des! I pulled the doc from PACER, and it's a rule 16 scheduling conference with the honorable EPB. Typically what happens at these hearings? Is this where we can open the lines of communication to attempt to settle? Or is this where I can file a MSJ or motion to dismiss? Or both? The AP process is long and drawn out; I just want this headache to end already. I didn't do anything malicious or morally wrong, and they will have a VERY hard time proving it beyond a shadow of a doubt at trial...they've got to know they're spinning their wheels. (They were probably thinking/hoping I didn't answer, honestly)

I'm not scared or stressed anymore, honestly...I'm more angry now. Lol.

[AngelinaCat]

Hi SC. I looked up your judge, and in his page of instructions, here is what I found regarding Adversary Proceedings:

http://www.azb.uscourts.gov/Documents/EPBADV.pdf

Des will be able to say whether I am on the right track or not. But it sounds like that at this hearing on August 6, you will not be able address the issues. This will just be an informational exchange for the judge to learn what is going on, and then he will set a 'trial' date later on.

[scbendel]

Yup I already have that page bookmarked. As far as what to do, I'm holding till tonight. Had a rough day yesterday. Thanks again cat!

[despritfreya]

Cat is correct. A Rule 16 Scheduling Conference is just that. . . to schedule how the case will proceed.

Our position is that the initial burden is on the Plaintiff to try to communicate with us for the initial meet and confer (can be telephonic). The Rule requires this meeting to happen no later than 14 days before the hearing. This meeting will be used to discuss such things as how long discovery will take, the date in which to disclose the use of an expert, when that expert’s report must be given, the date in which any dispositive motions (like a Motion for Summary Judgment) will be filed, when the parties anticipate being ready to go to trial if a MSJ is not filed and how long that trial will take.

The parties must exchange their "initial disclosures" and file a (joint) discovery plan within 10 days after the meet and confer.

The discovery plan is filed with the court, initial disclosures are not.

Initial disclosures are nothing more than a written statement sent to the opposing side indicating the individuals who you believe might have relevant information and a list of documents that may be used as exhibits. Once you have sent the other side your initial disclosures, you file a Notice of Submission of Initial Disclosures with the Court telling the Court that you have done what is required. You should be able to find samples in one or more of those cases you reviewed.

Of course, all of these dates, including the hearing, can be put on hold if the parties agree to do so, usually because they are discussing settlement.

Des.

[scbendel]

Thank you Des!

[scbendel]

Hello again guys!
The above post from Des is a little confusing. What should I do/bring/say at the rule 16 scheduling conference?
What do I need to do before this conference?

Thank you.

[despritfreya]

Sorry I confused you.

You bring yourself to the hearing.

Plaintiff's attny should be contacting you no later than 14 days before the hearing to discuss how the parties will proceed. If he/she does not contact you, you will show up at the hearing and indicate that to the Judge. (If the attny calls and you are not available make sure you call him/her back. If he/she writes you, respond. Never ignore the attempt to communicate.)

If Plaintiff's attny fails to initiate the meet & confer, you should still send the initial disclosures at least 4 days before the hearing (which is 10 days after the deadline to do the meet & confer).

More likely than not you will get a phone call from the attny or, if he/she does not have your phone number, a letter. Post back 13 days before the hearing if you have not heard from him/her.

Also, there is a self help center at the bk ct (6th floor I believe). Not sure if they can assist in an AP but no harming in finding out.

Des.

[scbendel]

Ok I think I got it now. To date, the attorney for the plaintiff still hasn't called us. The rule 16 scheduling conference is August 6th. That's in 8 days by my count. So should I still write up my initial disclosures and send them to the attorney? Or just bring them to the hearing?

At this point, would it be safe to file a MSJ and/or a motion to dismiss? Since they haven't done their due diligence in contacting me, would this be a grounds for dismissal? What exactly is a MSJ? Sorry for all the questions.

[AngelinaCat]

MSJ is a Motion for Summary Judgement. I don't think you will be able to do anything at your Status Conference. We tried to enter a Motion in ours, and were not able to. The only thing that happened was that a date for 'trial' was set.

[scbendel]

No harm in filing, but whether the judge hears it at that day is what I'll be up against. I'm thinking if filing it beforehand, and trying to calendar it at the same time slot. From reading my judge's rules, this may be possible. I'm hoping for the quickest resolution possible...I don't have the stomach for this to go to trial.

[despritfreya]

So should I still write up my initial disclosures and send them to the attorney?

Yes, not because you are required to, but because it puts you in a good light with the Judge. . . poor pro se defendants are actively trying to move things along while Plaintiff with lawyer is not following the Rules. Remember, file with the Court (in the AP case number) a Notice of Service of Initial Disclosures.

At this point, would it be safe to file a MSJ and/or a motion to dismiss? Since they haven't done their due diligence in contacting me, would this be a grounds for dismissal? What exactly is a MSJ? Sorry for all the questions.

It may not be "ripe" for such a Motion and since you will need to research how to properly do one (look up other AP cases), you do not want to rush it. A MSJ is asking the Court to rule in one's favor based upon the pleadings and evidence before the court. It is alleging that based upon those pleadings and evidence there simply is no need for a trial as the documents show that there are no material questions of law or fact therefore the Judge can rule "now".

I might suggest you review what was filed in the following AP as it relates to a MSJ. I followed this case as it was big news in the Valley last year - the largest jury award ever given. There was no way the Debtor was going to defeat a MSJ - no matter how hard she tried.

2-12-ap-01036

While you certainly can ask (especially if the Plaintiff fails to appear at the Scheduling Conference), typically the answer would be "no" - failure to contact you for the required "meet & confer" is not grounds for dismissal. If the Plaintiff appears at the Hearing the Judge may admonish the other side and leave it at that. However, if the other side does not appear (physically or by phone) you can make a speaking "Motion to Dismiss for Failure to Prosecute".

Des.

[scbendel]

Des, can I go alone? Or does my wife need to be there? We're having trouble getting a sitter and I know how the court frowns on children in the courtroom.

[despritfreya]

You can represent the "marital community" however, if your wife wishes to participate she can probably do so telephonically. Call the court to see if that is possible and, if so, to get the call-in number for your Judge. I do recommend at least one of you physically attend. Just looks good.

Des.