2013 BNH 009 Note: This is an unreported opinion. Refer to LBR 1050-1 regarding citation. 

______________________________________________________________________________ 

 UNITED STATES BANKRUPTCY COURT

 DISTRICT OF NEW HAMPSHIRE

In re: 

 

Bk. No. 12-13760-BAH 

Chapter 7 

In re Philip Shea, 

Debtor 

Daniel R. Krislov, 

Small & Lyons, 

Nashua, NH 

Attorney for Debtor

MEMORANDUM OPINION

I. INTRODUCTION 

 Susan Shea (the “Plaintiff”) filed an adversary proceeding seeking to contest the 

dischargeability of certain credit-card debts of the debtor, Philip Shea (the “Debtor”). After 

commencing that proceeding, the Plaintiff failed to appear at the pretrial conference, and then 

failed to withdraw her complaint after learning she was not responsible for the credit-card debt. 

The Debtor then filed a motion under Bankruptcy Rule 9011, which is now before the Court. For 

the reasons set forth below, the Court shall sanction the Plaintiff for (1) failing to appear at the 

pretrial conference and (2) failing to withdraw her complaint. 

 The Court has authority to exercise jurisdiction over the subject matter and the parties 

pursuant to 28 U.S.C. §§ 1334, 157(a), and U.S. District Court for the District of New Hampshire 

Local Rule 77.4(a). This is a core proceeding in accordance with 28 U.S.C. § 157(b). 

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II. FACTS

 The Plaintiff, who resides in the state of Florida, commenced the related adversary 

proceeding by filing a complaint seeking to except her claim against the Debtor from discharge 

under 11 U.S.C. § 523. See Adv. Pro. 13-1026-BAH. The Plaintiff filed the complaint and 

proceeded with the action without the aid of legal counsel. In the complaint, the Plaintiff alleged 

that the Debtor had continued to use a jointly-held credit card in contravention of the terms of a 

final decree of divorce and so caused the Plaintiff to become responsible for certain credit-card 

charges without her consent. The complaint sought relief pursuant to 11 U.S.C. § 523(a)(15)(A) 

and (B), a provision of the Bankruptcy Code1

 no longer in effect. However, the Plaintiff also 

generally asserted “in the alternative” that the Debtor should be “denied a discharge of” the debt 

attributable to the unauthorized credit card charges, and included an allegation that the Debtor 

“knowingly and maliciously incurred such debt,” which allegation could be read to plead a claim 

of nondischargeability under 11 U.S.C. § 523(a)(6).2

 The filing of the complaint caused a summons to be issued, which set a preliminary pretrial 

conference for May 15, 2013. Adv. Pro. 13-1026-BAH at Doc. No. 2. The Court held the 

pretrial conference on that date. The Debtor appeared at the pretrial but the Plaintiff did not. 

The Plaintiff did, however, send an e-mail to the Clerk of Court alluding to her intention to 

withdraw the complaint. The Court read this e-mail aloud, on the record, at the May 15 pretrial 

 

1

 The Court shall refer to Title 11 of the United States Code as the “Bankruptcy Code.” See Local Bankruptcy Rules, 

Preface. 

2

 11 U.S.C. § 523(a)(6) excepts from discharge any debt “for willful and malicious injury by the debtor to another 

entity . . . .” 

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conference. In light of both this e-mail and the Plaintiff’s failure to appear, the Court issued an 

order requiring the Plaintiff, on or before June 12, 2013, to “FILE A MOTION TO DISMISS OR 

A STIPULATED NOTICE OF DISMISSAL REGARDING THE COMPLAINT FAILING 

WHICH THE CASE MAY BE DISMISSED FOR FAILURE TO PROSECUTE.” Id. at Doc. 

No. 4. 

 On June 12, 2013, after the Plaintiff failed to comply with the Court’s May 15 order, the 

Debtor filed a Motion for Sanctions and a Motion to Dismiss. Id. at Doc. Nos. 7, 9. The Court 

subsequently dismissed the adversary proceeding for lack of prosecution, but retained jurisdiction 

to hear and determine the Debtor’s Motion for Sanctions. Id. at Doc. No. 11. 

 In the sanctions motion, under Bankruptcy Rule 9011, the Debtor argues that the Plaintiff’s 

complaint was both unwarranted by existing law—given the reference to former section 

523(a)(15)(A) and (B)—and unsupported by factual contentions containing any evidentiary basis. 

The Debtor alleges that the Plaintiff had been informed, before she filed the complaint, that her 

name was no longer on the credit card in question. In response, the Plaintiff wrote a letter 

addressed to the Clerk of Court, which was docketed as her formal response to the sanctions 

motion. Countering the assertion that the complaint was unsupported by existing law, the 

Plaintiff appeals to her status as a pro se litigant, stating “I researched the NH statutes and US 

Bankruptcy statutes online and prepared my filings to the best of my ability.” Pl. Response at 1, 

Bk. No. 12-13760, Doc. No. 25. The Plaintiff also responded that she did conduct a reasonable 

inquiry into the facts supporting the complaint before filing the adversary proceeding. She states 

simply that the credit-card company contacted her several weeks before she filed the case and 

informed her that she was jointly liable on the credit-card debt with the Debtor. It was not until 

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after the complaint had been filed that the Plaintiff learned this had been an error. The Plaintiff 

also attempted to justify her failure to withdraw the complaint: “Several weeks after filing the Pro 

Se motion3

 [sic], I learned that my name had been removed from the Discover Card and that I 

would not be responsible for this debt. I attempted to discuss the matter with Attorney Krislov4 to 

bring the matter to a close but he was uninterested.” 

 On July 31, 2013, the Court held a hearing on the Debtor’s sanctions motion. The 

Plaintiff again failed to appear at this hearing.5 The Debtor offered evidence, in the form of an 

e-mail from Attorney Krislov to the Plaintiff, to refute the Plaintiff’s statement that the Debtor was 

“uninterested” in “bring[ing] the matter to close.” In the relevant part, this e-mail reads “I would 

be happy to discuss and negotiate this matter with you further.” Ex. 1, April 30, 2013 e-mail from 

Debtor’s Counsel to the Plaintiff. This e-mail was admitted into evidence, and at the conclusion 

of the hearing, the Court took the sanctions motion under advisement. 

 

III. DISCUSSION

 A. The Failure to Appear at the Pretrial Conference

 Federal Rule of Civil Procedure 16, which Bankruptcy Rule 7016 applies to this 

proceeding, governs the substance and conduct of pretrial conferences. The purposes of the 

pretrial conference are spelled out in Rule 16(a): 

The court may order the attorneys and any unrepresented parties to appear for one or more 

pretrial conferences for such purposes as: 

 

3

 The Court understands this to be a reference to the Plaintiff’s Complaint. 4

 Debtor’s counsel in both the main bankruptcy case and the adversary proceeding. 5

 The Court’s Local Rules and Administrative Orders generally permit telephonic appearances at many types of 

hearings. While AO 9074-1(a)(1)(E) generally requires counsel and pro se parties to personally appear at pretrial 

conferences, it also provides that permission to appear telephonically may be granted by the Court. The Plaintiff 

made no such request. 

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(1) expediting disposition of the action; 

(2) establishing early and continuing control so that the case will not be protracted because 

of lack of management; 

(3) discouraging wasteful pretrial activities; 

(4) improving the quality of the trial through more thorough preparation; and 

(5) facilitating settlement. 

See also LBR 7016-1. 

 When a party fails to appear at a pretrial conference, Rule 16(f) applies. This rule 

provides that “the court may issue any just orders . . . if a party or its attorney . . . fails to appear at 

a scheduling or other pretrial conference.” It is undisputed that the Plaintiff failed to attend the 

pretrial conference. The Plaintiff’s attendance at the pretrial conference would have been 

beneficial to all the parties, especially in light of the Plaintiff’s apparent confusion as to how to 

dismiss the adversary proceeding. See Pl. Response at 1 (“Since my name has been removed 

from the Discover Card account/debt, the Adversary matter is mute [sic] and I do not know how to 

close the matter.”). Had the Plaintiff appeared, the Court could have accepted a voluntary 

dismissal on the spot, thus performing a core function of the pretrial conference—“expediting 

disposition of the action.” Fed. R. Civ. P. 16(a)(1). Ultimately, the failure to attend the pretrial 

resulted in the continuation of the proceeding for several weeks, and precipitated the Debtor 

incurring costs to file a motion to dismiss and the sanctions motion at issue here. For these 

reasons the Court finds that sanctions are appropriate. 

 Rule 16(f)(2) governs the imposition of fees and costs for the failure to attend a pretrial 

conference. In certain circumstances, “instead of or in addition to any other sanction, the court 

must order the party, its attorney, or both to pay the reasonable expenses—including attorney’s 

fees—incurred because of any noncompliance with this rule, unless the noncompliance was 

substantially justified or other circumstances make an award of expenses unjust.” This rule 

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imbues the Court “with considerable discretion in deciding whether to impose sanctions” on the 

offending party and “in determining what form the sanctions should take.” Jones v. 

Winnepesaukee Realty, 990 F.2d 1, 5-6 (1st Cir. 1993). Because the Court has found that 

sanctions are appropriate, the Plaintiff shall be required to pay the reasonable expenses and 

attorney’s fees of the Debtor incurred in connection with the filing of the motion to dismiss. The 

Debtor may not have incurred these costs if the Plaintiff had appeared at the pretrial conference, 

and the Court finds that the reasonable fees and costs associated with that filing are fair under Rule 

16(f)(2). 

 B. Sanctions under Rule 9011(b)

 Bankruptcy Rule 9011(b) provides in the relevant part: 

By presenting to the court (whether by signing, filing, submitting, or later advocating) a 

petition, pleading, written motion, or other paper, an attorney or unrepresented party is 

certifying that to the best of the person’s knowledge, information, and belief, formed after 

an inquiry reasonable under the circumstances,— 

. . . . 

(2) the claims, defenses, and other legal contentions therein are warranted by existing law 

or by a nonfrivolous argument for the extension, modification, or reversal of existing law 

or the establishment of new law; 

(3) the allegations and other factual contentions have evidentiary support or, if specifically 

so identified, are likely to have evidentiary support after a reasonable opportunity for 

further investigation or discovery . . . . 

The Debtor argues that the filing of the complaint violated both (b)(2) and (3) of this rule. Under 

(b)(2), the Debtor asserts that the Plaintiff’s claim was not warranted under existing law because 

the claim was premised upon the applicability of the provisions of 523(a)(15)(A) and (B), which 

are no longer in effect. “A legal argument is not warranted by existing law if it is based on legal 

theories that are plainly foreclosed by well-established legal principles and authoritative precedent 

. . . .” In re CK Liquidation Corp., 321 B.R. 355, 362 (1st Cir. B.A.P. 2005). Insofar as the 

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complaint was based on former section 523(a)(15)(A) and (B), it was not warranted under existing 

law. In the complaint, however, the Plaintiff made reference to section 523(a)(6), which is still 

good law. The Plaintiff both filed the complaint and proceeded with the action pro se. The 

Court is required to liberally construe pro se filings. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 

285, 50 L.Ed.2d 251 (1976); Nunnally v. MacCausland, 996 F.2d 1, at 6 n.8 (1st Cir. 1993) (“Pro 

se filings are held to a less stringent procedural standard than others.”); Gonsalves v. Belice (In re 

Belice), 2011 WL 4572003 at *3 (1st Cir. B.A.P 2011). In this context, the Court finds the 

reference to section 523(a)(6), coupled with the request for the Court to deem a specific debt 

nondischargeable, to be sufficient to avoid liability under Bankruptcy Rule 9011(b)(2). 

 The Debtor also seeks sanctions under Rule 9011(b)(3), claiming that the factual 

assertions in the complaint were without evidentiary support when the complaint was filed, and 

that had the Plaintiff undertaken a reasonable investigation, she would have discovered this to be 

the case. In the Rule 9011(b) context, a party is held to an objective standard of reasonableness 

under the circumstances. Cruz v. Savage, 896 F.2d 626, 631 (1st Cir. 1990).6

 “Courts, therefore, 

must inquiry as to whether a reasonable attorney in like circumstances could believe his actions to 

be factually and legally justified.” In re Withrow, 405 B.R. 505, 511-12 (1st Cir. B.A.P. 2009) 

(quoting Cabell v. Petty, 810 F.2d 463, 466 (4th Cir. 1987)). “The duty to make a reasonable 

investigation applies to attorneys and parties who appear without counsel. When evaluating the 

reasonableness of an investigation by a pro se litigant, the Court may consider various problems 

that may be encountered by a party who appears without an attorney.” Collier on Bankruptcy ¶ 

9011.04[2][a] (Alan N. Resnick & Henry J. Sommer eds. 16th ed.). Thus, the Court, mindful of 

 

6 Rule 9011 is drawn from Federal Rule of Civil Procedure 11; jurisprudence from the one is transferrable to the other. 

In re CK Liquidation Corp., 321 B.R. at 362. 

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typical problems encountered by pro se parties, will consider whether a reasonable pro se litigant 

in like circumstances would consider the Plaintiff’s actions to be factually justified. 

 The Plaintiff states that before she filed her complaint, she talked with a representative of 

the credit card company, who informed her that she would be liable on the debt incurred by the 

Debtor on the credit card. The Plaintiff also attached to her complaint a credit report, apparently 

relating to the credit card in question, showing past due balances. The credit reported indicated 

that the credit card was jointly held, a fact which appears to support the Plaintiff’s complaint. The 

Debtor attempts to refute these factual assertions by stating that he contacted an attorney who 

purported to represent the Plaintiff before the adversary was filed, and told this attorney that the 

Plaintiff had been taken off the credit card. Even if all of these assertions—by both parties—are 

correct, a reasonable pro se litigant could consider the Plaintiff’s actions justified. The Plaintiff 

had information that her name was still on the credit card, information that could reasonably be 

credited with greater weight than statements to the contrary by an opposing attorney. This was 

sufficient information to justify the filing of the complaint. 

 The Court must also look to the evidentiary support for the complaint subsequent to its 

filing. The Plaintiff states in her response that several weeks after filing her complaint, she 

“learned that [her] name had been removed from the Discover Card and that [she] would not be 

responsible for this debt.” Pl. Response at 1. This statement indicates that the Plaintiff came to 

realize that the factual basis of the complaint was unsupported by evidence. The Plaintiff 

characterizes these actions as not “hostile in nature but merely a means of securing my financial 

best interest with the knowledge that I had at the time of filing the Adversary Proceeding.” Pl. 

Response at 2. Despite knowing that she was not responsible for the Debt, the Plaintiff neglected 

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to file a motion to dismiss the complaint, and did not consult with the Debtor’s attorney about a 

joint stipulation of dismissal. The Plaintiff failed to do these things, even after the Court had 

specifically directed her to take one of these actions following the pretrial conference. 

 Rule 9011 places parties under a “continuing obligation to ensure that the proceedings do 

not continue without a reasonable basis in law and fact.” Cruz v. Savage, 896 F.2d at 631. Once 

the Plaintiff learned that her name was off the credit card and that she was not responsible for the 

debt, she was obligated to ensure the proceedings did not continue. Under the present 

circumstances, the Court finds this failure sanctionable under Rule 9011. In her Response, the 

Plaintiff states that she did not know how to withdraw her complaint. The Plaintiff did not raise 

this issue until more than ten days after the Court required action on her part. See Order, Adv. 

Pro. 13-1026-BAH at Doc. No. 4. In these circumstances, an appeal to ignorance of the rules is 

too little too late; parties who instigate adversary proceedings may not ignore the costly effects of 

the litigation they have begun. 

 Rule 9011(c)(1)(A) governs sanctions when a party has requested relief under Rule 

9011(b) by motion. Rule 9011(c)(2) limits the extent of any sanction imposed to “what is 

sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.” 

Given this directive, the Court shall require the Plaintiff to pay the Debtor’s reasonable attorney’s 

fees and any reasonable expenses that went into the preparation of the motion for sanctions and the 

subsequent hearing on the motion. 

IV. CONCLUSION

For the foregoing reasons, the Plaintiff shall be required to pay the reasonable costs and 

attorney’s fees associated with the Debtor’s filing of the motion to dismiss and the motion for 

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sanctions, as well as the Debtor’s costs of attending the hearing on the motion for sanctions. This 

opinion constitutes the Court=s findings of fact and conclusions of law in accordance with Federal 

Rule of Bankruptcy Procedure 7052. The Court will issue a separate order consistent with this 

opinion. 

 ENTERED at Manchester, New Hampshire. 

Date: September 19, 2013 /s/ Bruce A. Harwood

 Bruce A. Harwood 

 Chief Bankruptcy Judge 

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