B.j. Mcadams, Inc., on Behalf of the Bankruptcy Estate Ofb.j. Mcadams, Inc., Plaintiff-appellant, v. Gray & Company, an Oregon Corporation, Defendant-appellee, 19 F.3d 1439 (9th Cir. 1994)

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US Court of Appeals for the Ninth Circuit - 19 F.3d 1439 (9th Cir. 1994) Submitted March 10, 1994. *Decided March 14, 1994

Before: BROWNING, KOZINSKI and NOONAN, Circuit Judges.


MEMORANDUM** 

B.J. McAdams, Inc. appeals the district court's dismissal of its complaint against Gray & Company. Everyone agrees that the complaint should have named the trustee as the plaintiff. The issue is whether the district court should have granted leave to substitute the proper party pursuant to Fed. R. Civ. P. 17.

The district court denied McAdams' Rule 17 motion to substitute the trustee as plaintiff because the bankruptcy court hadn't authorized the filing attorney's employment under 11 U.S.C. § 327 and Bankruptcy Rule 2014. These provisions apply, however, when the trustee "employ [s]" an attorney. Here, Messrs. Harris and Pfister were employed by Professional Truck Auditing, Inc. (PTA). See ER at 98, 99, 105. That any collection action they brought would, of necessity, be on behalf of the trustee, see 11 U.S.C. § 323, did not change the nature of their employment. PTA, after all, was footing their bill. ER 105. And their authority to sue on behalf of the trustee is clear. ER 33-34. Therefore, the district court erred in refusing leave to substitute the trustee as plaintiff under Rule 17.

REVERSED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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