Larry Boecken Jr v. Gallo Glass Company
Filing
93
STIPULATION and ORDER to VACATE June 15, 2011 Settlement Conference Before Magistrate Judge Dennis L Beck and to Require the Parties to Inform the Court when the Bankruptcy Trustee has Acted on the Reopening of Plainitff Boecken's Chapter 7 Bankruptcy signed by Magistrate Judge Dennis L. Beck on 6/14/2011. (Figueroa, O)
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NANCY L. ABELL (SB# 088785)
nancyabell@paulhastings.com
PAUL, HASTINGS, JANOFSKY & WALKER LLP
515 South Flower Street, Twenty-Fifth Floor
Los Angeles, CA 90071-2228
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Attorneys for Defendant
GALLO GLASS COMPANY
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LARRY BOECKEN, JR.,
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Plaintiff,
v.
GALLO GLASS COMPANY, and
DOES 1 THROUGH 50,
INCLUSIVE,
Defendant.
CASE NO. 1:05-CV-00090 OWW DLB
STIPULATION AND ORDER TO VACATE
JUNE 15, 2011 SETTLEMENT CONFERENCE
BEFORE MAGISTRATE JUDGE BECK AND
TO REQUIRE THE PARTIES TO INFORM
THE COURT WHEN THE BANKRUPTCY
TRUSTEE HAS ACTED ON THE REOPENING
OF PLAINTIFF BOECKEN’S CHAPTER 7
BANKRUPTCY
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Judge:
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Hon. Oliver W. Wanger
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Case No. 1:05-cv-00090 OWW DLB
STIPULATION AND [PROPOSED] ORDER TO
VACATE JUNE 15, 2011 SETTLEMENT
CONFERENCE, ETC.
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BACKGROUND
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for the Eastern District of California, Case No. 08-15050-B-7. He did not list this lawsuit as an
asset on the schedules he filed with the Bankruptcy Court. On or about December 30, 2008, the
United States Bankruptcy Court granted Plaintiff a discharge under section 727 of title 11, United
States Code. On May 5, 2011, new counsel for Defendant Gallo Glass Company, Nancy L.
Abell, apprised Plaintiff’s counsel of these facts, promptly following her discovery of them at the
time she was retained as counsel. Plaintiff’s counsel advises the Court that it was unaware of
Plaintiff’s bankruptcy proceeding until Ms. Abell brought it to counsel’s attention.
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Defendant submits that (i) Plaintiff’s claims are the property of the
bankruptcy estate; (ii) Plaintiff has no standing to pursue them in this Court for any purpose,
including settlement at the scheduled June 15, 2011 settlement conference; and (iii) Plaintiff is
judicially estopped from litigating this lawsuit.
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On August 21, 2008, Plaintiff Larry Boecken, Jr., filed a Voluntary Petition
for bankruptcy under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court
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This action was filed in 2004.
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On May 25, 2011, Plaintiff filed an application to reopen his Chapter 7
bankruptcy case, along with amended schedules listing this lawsuit as an asset omitted from his
original filing.
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On May 27, 2011, the United States Bankruptcy Court for the Eastern
District of California reopened Plaintiff’s Chapter 7 bankruptcy case, No. 08-15050-B-7, and
ordered that the amended schedules be served on the U.S. Trustee within 30 days along with a
declaration from Plaintiff Boecken explaining why the asset was omitted from the original
schedules. That declaration has not yet been filed. The order further provides that the U.S.
Trustee thereafter may have 30 days to appoint a Chapter 7 trustee if necessary to investigate and
administer the omitted asset, namely this lawsuit.
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Case No. 1:05-cv-00090 OWW DLB
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STIPULATION AND [PROPOSED] ORDER TO
VACATE JUNE 15, 2011 SETTLEMENT
CONFERENCE, ETC.
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STIPULATION
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Therefore, the parties jointly request that this Court (i) vacate the June 15, 2011
settlement conference because no Chapter 7 trustee has yet been appointed, and (ii) order the
parties to promptly inform the Court when the U.S. Trustee has acted on the reopening of Plaintiff
Boecken’s Chapter 7 bankruptcy so that the appropriate participants can be served with notice of,
and required to participate in, a settlement conference in this case.
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Dated: June 13, 2011
LAW OFFICES OF MINA L. RAMIREZ
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By: __/s/_Noah W. Kanter________________________
Noah W. Kanter
Counsel for Plaintiff
Larry Boecken, Jr.
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Dated: June 13, 2011
PAUL, HASTINGS, JANOFSKY & WALKER LLP
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By: __/s/_Nancy L. Abell_________________________
Nancy L. Abell
Counsel for Defendant
Gallo Glass Company
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ORDER
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IT IS SO ORDERED.
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Dated: June 14, 2011
/s/ Dennis L. Beck
United States Magistrate Judge
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-2-
STIPULATION AND ORDER TO VACATE JUNE 15,
2011 SETTLEMENT CONFERENCE, ETC.
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