Skipp v. Brigham (In re Skipp)

IN RE: SUSAN SKIPP, DEBTOR.

SUSAN SKIPP PLAINTIFF, v. MARY BRIGHAM DEFENDANT.

CASE NO. 13-50292 (JAM)

ADV. PRO. NO. 13-05036

UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT

August 2, 2018

CHAPTER 7

ECF No. 101

APPEARANCES

Susan Skipp

Pro Se Plaintiff

Stephen E. Pliakas

Jeffrey J. Tinley

Tinley, Renehan & Dost, LLP

60 North Main Street

Waterbury, CT 06702

Attorneys for the Defendant

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

I. Introduction

On July 11, 2013, Susan Skipp (the "Plaintiff"), pro se, filed a "Motion for Adversarial Proceeding" (hereinafter, the "Complaint," ECF No. 1), alleging that Mary Brigham (the "Defendant") violated federal and constitutional law. On March 31, 2017, the Defendant filed a Motion for Summary Judgment (the "Motion for Summary Judgment," ECF No. 101), asserting that the Court did not have jurisdiction over the claims raised in the Complaint and that the debt owed to the Defendant for guardian ad litem ("GAL") fees is non-dischargeable under 11 U.S.C. §§ 523(a) as a matter of law. On April 19, 2017, the Plaintiff filed a Motion to Strike Defendant's Motion for Summary Judgment (the "Motion to Strike," ECF No. 102). On May 1, 2017, pursuant to a Pretrial Order dated February 24, 2017 (the "Pretrial Order," ECF No. 98), a pretrial conference was held and the Court issued an Order Suspending Existing Pretrial Order (ECF No. 98) Pending Ruling on Motion for Summary Judgment (the "Order Suspending Existing Pretrial Order," ECF No. 104). The Plaintiff did not appear at the pretrial conference.

On May 3, 2017, a copy of the Order Suspending Existing Pretrial Order was served on the Plaintiff via certified mail, which was later returned to the Clerk's Office as undeliverable and was stamped "Box¹ Closed, Unable to Forward" (ECF No. 106). On June 21, 2017, the Motion for Summary Judgment and related pleadings were inadvertently taken under advisement despite the fact that the Plaintiff had not been served with the Order Suspending Existing Pretrial Order.

On August 24, 2017, the Court issued an Amended Order Suspending Existing Pretrial Order (ECF No. 98) Pending Ruling on Motion for Summary Judgment (the "Amended Order Suspending Existing Pretrial Order," ECF No. 107). The Amended Order Suspending Existing Pretrial Order: (i) noted the apparent lack of service of the Order Suspending the Existing Pretrial Order; (ii) deemed the Plaintiff's Motion to Strike² as her response and opposition to the Motion for Summary Judgment; (iii) provided new deadlines by which the Plaintiff must file a Local Rule 56(a)(2) Statement and the Defendant must reply to the Plaintiff's Local Rule56(a)(2) Statement; and (iv) required the Order to be served on the Plaintiff via first class mail at a new address more recently provided in her Chapter 7 case.³

According to the certificate of mailing of the Bankruptcy Noticing Center (the "BNC "), the Amended Order Suspending Existing Pretrial Order was mailed to the Plaintiff by first class mail to the P.O. Box listed on the Plaintiff's Chapter 7 petition. Although the address listed on the Debtor's Chapter 7 petition is the same address from which the Order Suspending Existing Pretrial Order had been returned to the Court as "undeliverable," no similar return notice was received in connection with the Amended Order Suspending Existing Pretrial Order. However, on September 29, 2017, the Amended Order Suspending Existing Pretrial Order that was sent to the Plaintiff's new address was reported as unclaimed, and returned to the Clerk's Office (ECF No. 109).

Although pro se, it is clear the Plaintiff has knowledge of the Motion for Summary Judgment as evidenced by the filing of the Motion to Strike. In the Amended Order Suspending Existing Pretrial Order, the Court deemed the Plaintiff's Motion to Strike as her response to the Motion for Summary Judgment and ordered the Plaintiff to comply with the Local Rules of Civil Procedure and file a Local Rule 56(a)(2) Statement. The Plaintiff has not filed any pleading to comply the Court's Amended Order Suspending Existing Pretrial Order. In addition, the Plaintiff has not provided an additional or new mailing address where notices, orders, or pleadings can be served, which Federal Rule of Bankruptcy Procedure 4002(a)(5) requires when a debtor's address changes after the filing of a bankruptcy petition. The Motion for Summary Judgment and the Motion to Strike have been pending for more than one year. The Plaintiff hasbeen given ample opportunity to fully respond to the Motion for Summary Judgment. For the reasons discussed below, the Defendant's Motion for Summary Judgment is GRANTED.

II. Jurisdiction

The United States District Court for the District of Connecticut has jurisdiction over the instant proceedings pursuant to 28 U.S.C. § 1334(b). The Bankruptcy Court derives its authority to hear and determine this matter pursuant to 28 U.S.C. §§ 157(a) and (b)(1) and the District Court's General Order of Reference dated September 21, 1984. This is a "core proceeding" pursuant to 28 U.S.C. § 157(b)(2)(I).

III. Undisputed Facts

A review of the Motion for Summary Judgment and its attached documents, the Defendant's Rule 56(a)(1) Statement, the Plaintiff's Motion to Strike, and an examination of the record in the Plaintiff's Chapter 7 case and this adversary proceeding establishes the following undisputed facts for the purposes of the Motions for Summary Judgment.⁴

1. The Defendant was appointed GAL for the Plaintiff's two minor children in September 2010 for the duration of a divorce and custody case in Connecticut Superior Court (the "divorce case," Conn. Sup. Ct. Docket No. UWY-FA10-4022992-S). Def.'s Local Rule 56(a)(1) Statement at ¶ 1.

2. The Defendant performed her duties pursuant to that appointment until she was discharged on October 16, 2012. Def.'s Local Rule 56(a)(1) Statement at ¶ 2.

3. On October 16, 2012, the Connecticut Superior Court found that the Plaintiff owed the Defendant $38,230.30 for GAL services (the "GAL fees"), and that the Defendant's rate and fees were fair and reasonable. Def.'s Local Rule 56(a)(1) Statement at ¶ 3.

4. In addition to finding the GAL fees to be fair and reasonable, the Connecticut Superior Court also found that the Defendant performed her services "competently" and "well," and ordered the Plaintiff to pay the Defendant the GAL fees on a monthly basis at the rate of $500.00 for the first six months and thereafter at $1,000.00 per month. Def.'s Local Rule 56(a)(1) Statement at ¶ 4.

5. Both the Connecticut Appellate Court and the Connecticut Supreme Court denied the Plaintiff's appeal of the divorce case decision. See Tittle v. Skipp-Tittle, 150 Conn. App. 64 (2014) (judgment affirmed in A.C. No. 35156), cert. denied, Tittle v. Skipp-Tittle, 315 Conn. 929 (2015). Def.'s Local Rule 56(a)(1) Statement at ¶ 7.

6. On October 8, 2013, the Connecticut Superior Court ruled that the Defendant's GAL fees were in the nature of support and of a kind that were nondischargeable in bankruptcy. The Plaintiff's appeal of that order to the Connecticut Appellate Court was also dismissed. See Tittle v. Skipp-Tittle, 61 Conn. App. 542, 592-93 (2015) (judgment affirmed in A.C. No. 36231). The Plaintiff's subsequent petition for certification to the Connecticut Supreme Court was dismissed on September 17, 2014. Tittle v. Skipp-Tittle, 314 Conn. 908 (2014). Def.'s Local Rule 56(a)(1) Statement, ¶ 9.

IV. Legal Issues

A. Summary Judgment Standard

"Federal Rule of Civil Procedure 56(a), made applicable to these proceedings by the Fed. R. Bankr. P. 7056, directs that '[t]he court shall grant summary judgment if the movant showsthat there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Parris v. Delaney (In re Delaney), 504 B.R. 738, 746 (Bankr. D. Conn. 2014) (internal quotations and alteration in original) (quoting Fed. R. Civ. P. 56(a)). When considering a motion for summary judgment, "the judge's function . . . is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Furthermore, the court "cannot try issues of fact; it can only determine whether there are issues to be tried." Flaherty v. Lang, 199 F.3d 607, 615 (2d Cir. 1999) (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994)).

At the summary judgment stage, the moving party bears the burden of showing that there are no material facts in dispute and the court is to draw all reasonable inferences, and resolve all ambiguities, in favor of the non-moving party. United Transp. Union v. Nat'l R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir. 2009). Once the moving party has met its burden, in order to defeat the motion, the "party opposing summary judgment . . . must set forth 'specific facts' demonstrating that there is 'a genuine issue for trial.'" In re Affinity Health Care, Mgmt., Inc., 499 B.R. 246, 251 (Bankr. D. Conn. 2013) (quoting Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)). "[A] non-moving party must point to more than a mere 'scintilla' of evidence in order to defeat a motion for summary judgment." Id. (quoting Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir. 2008)).

When a nonmoving party "chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 161 (1970). See also Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); RLI Ins. Co. v. Eoanou, 567 F. Supp. 2d 303, 305 (D. Conn. 2008) ("[u]nder governing Second Circuit precedent," a court may not grant...