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bankruptcy petition date. . . . [T]his language merely incorporates suspensions of deadlines that are expressly provided in other federal or state statutes. . . . Mitchell's complaint did not toll the limitations period because the complaint did not seek a judgment on the merits of his underlying claim; instead it asked permission to file suit in state court and to have any judgment resulting from that suit be excepted from the discharge under 11 U.S.C. S 523(a)(3). A statute of limitations is not tolled during the pendency of an action seeking to have a matter adjudicated on a basis separate and distinct from the cause or causes of action covered by that statute. Mitchell could have asked the bankruptcy court to enter a judgment of nondischargeability on the merits of his underlying claim against the Debtors, but he did not do so.").
D. Service of process
E. Amending complaint after filing deadline
1. Allowing amendment
Peterson v. Weber (In re Weber), 392 B.R. 760 (B.A.P. 8th Cir. 2008) (Bankruptcy court abused discretion in denying motion to amend S 523(a)(2) complaint to include S 523(a)(14) count five days before trial. "[FED. R. CIV. P] 15 instructs courts to 'freely give' leave to amend a pleading 'when justice so requires.'. . [T]he determination . . . should be guided by a clear preference for trying matters on the merits, and leave should not be denied unless the delay in bringing the amendment or prejudice caused thereby rises beyond the incidental, i.e., it must be 'undue.'" Debtor borrowed $170,000 from plaintiff to pay federal taxes. Plaintiff confirmed that debtor paid taxes with borrowed funds five days before trial and immediately moved to amend complaint. The new legal theory was based on allegations known to debtor, did not raise a "particularly complex new issue," a short continuance would have prejudiced no one and debtor was partially responsible for last minute payment confirmation.).
2. Not allowing amendment
Melquiades v. Hill (In re Hill), 390 B.R. 407 (B.A.P. 10th Cir. 2008) (Denial of amendment to add S 727(a)(3) cause of action to S 523(a)(4) & (a)(6) complaint was appropriate when motion was made two weeks after discovery deadline and less than 30 days prior to trial. Motion sought to add claim under S 727(a)(3) for failure to provide documents related to sale of business and alleged misappropriation of sale proceeds. Plaintiff "sought to add a legal claim to his complaint based on the same facts he had alleged in the two other counts," he "did not justify his failure to seek amendment sooner," and he "alreadyhad the information he sought to compel Debtors to produce.").
F. Intervention; substitution
G. Counterclaims
H. Jury trial in discharge and dischargeability proceedings
I. Estoppel and res judicata
©2009 Keith M. Lundin
