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UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
Chapter 11
No. 96-10123-CK
In Re:
V&M MANAGEMENT , INC.
Debtor,
ALPHONSE MOURAD,
Plaintiff,
v.
STEPHEN GREY, TRUSTEE,
Defendant.
MOTION TO STRIKE TRUSTEE'S
CROSS-MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiff, Alphonse Mourad, by and through his counsel, requests this Honorable Court to strike the Creditor's Trustee's Cross-Motion for Judgment on the Pleadings. In support thereof, Plaintiff states as follows:
1. Under the Federal Rules of Civil Procedures, if, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for Summary Judgment and disposed of as provided in Rule 56 and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56. Fed. R. Civ. P. 12(c).
2. In his cross-motion for judgment, the Trustee presented matters outside the pleadings, including a factual claim that there are "no remaining assets;" that his actions did not constitute bad faith, willful misconduct or gross negligence and that a Tax Court case collaterally estops the Plaintiff in this action (presumably based on the findings of the Tax Court at trial). See Trustee's Cross-Motion at 13-17. As such, the Trustee's cross-motion is properly treated as one for Summary Judgment.
3. Further, this Court may take notice that the Bankruptcy Appellate Panel of the First Circuit has already remanded this matter in light of the standard of pleading under Rule 12(b)(6). See BAP Order; also see Fed. R. Civ. P. 12(b)(6). As such, for the Trustee's cross-motion to even be considered, logic suggests that it must contain additional factual material. Otherwise, the motion would be no more than a renewed motion to dismiss.
4. Under the local rules, the Bankruptcy Court adopted District Court Local Rule 56.1. M.L.B.R. 7056-1. Under the District Court Rule, motions for Summary Judgment shall include a concise statement of material facts of record as to which the moving party contends there is no genuine issue to be tried, with page references to affidavits, depositions and other documentation. D.C.L.R. 56.1. Failure to include such a statement constitutes grounds for denial of the motion. Id.; see Change the Climate v. Mass. Bay Transp. Auth., 202 F.R.D. 43, 53 (D. Mass. 2001) (denying cross-motions for Summary Judgment where the parties failed to comply with local rule 56.1).
5. There is no dispute that the Trustee has not filed any affidavit or exhibit (other than the front page of a Tax Court decision). See Trustee's Cross-Motion. As such, the motion is not properly supported. The failure to comply with the rule requires that the motion be stricken.
WHEREFORE, Plaintiff, Alphonse Mourad, by and through his counsel, requests this Honorable Court to strike the Creditor's Trustee's Cross-Motion for Judgment on the Pleadings.
Respectfully Submitted,
Attorney for Plaintiff
Lester E. Riordan III
81 Washington Street, Suite 8
Salem, MA 01970
Telephone: 1-978-744-9461
BBO #: 633725