UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF PUERTO RICO

Alfredo Castellanos Bayouth, et al.

v. NH Civil No. 05-ds-21-JD

PR Civil No. 02-2357

Gabriela Alejandra Guzman Pinal

and Luis Olmos Dueas

O R D E R

The plaintiffs have filed a notice with the court, titled

“Urgent Notice to the Court and Alerting This Court That

Plaintiffs Will, When Duly Authorized, Be Filing a Petition for

Recusal.” The “Urgent Notice” raises several issues in this case

that are addressed as follows.

A. Parties

On July 11, 2005, the court issued an order that addressed a

question as to the proper parties in this case. No party filed a

motion for reconsideration or clarification in response to that

order. Therefore, as stated therein, the remaining plaintiffs

are Alfredo Castellanos and the conjugal partnership of Alfredo

Castellanos and Maria A. Hambleton.

The court notes that Alfredo Castellanos Bayouth is also

listed as a plaintiff and serves as the attorney for the 

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plaintiffs in this case. The plaintiffs shall clarify whether

Alfredo Castellanos Bayouth and Alfredo Castellanos, as they

appear in this case, are the same party or different parties. 

B. Bankruptcy Proceeding

The plaintiffs’ “Urgent Notice” appends a copy of a notice

issued by the bankruptcy court that Alfred Antonio Castellanos

Bayouth filed for bankruptcy protection under Chapter 7 on

November 8, 2004. The notice announces an automatic stay of

suits as follows: 

the petition by the above named debtor operates as a

stay of the commencement or continuation of any court

or other proceeding against the debtor, of the

enforcement of any judgment against, of any act or the

commencement or continuation of any court proceeding to

enforce any lien on the property of the debtor, and of

any court proceeding commenced for the purpose of

rehabilitation of the debtor or the liquidation of his

estate.

Pl. App. (Emphasis added.) The plaintiffs also appended a copy

of a filing in the bankruptcy court titled “Application for

Appointment of Attorney for the Trustee.”

1. Automatic stay.

The bankruptcy court notice of the automatic stay filed with

the “Urgent Notice” is the first time this court has been

properly notified of the bankruptcy proceeding filed by

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The plaintiffs previously failed to notify the court of a 1

bankruptcy petition filed by former plaintiff Cast Entertainment,

Inc., and instead relied on notice provided by the defendant. 

The court expects appropriate diligence on the part of the

attorneys who practice before it.

See Crosby v. Monroe County, 394 F.3d 1328, 1331 n.2 (11th 2

Cir. 2004); F.D.I.C. v. Eltrex Int’l Corp., 1994 WL 258673 *2

(D.N.H. Feb. 1, 1994); Mesiti v. Microdot, Inc., 156 B.R. 113,

118-19 n.5 (D.N.H. 1993).

At present and until notified to the contrary, the court 3

assumes that plaintiffs Alfredo Castellanos and Alfredo

Castellanos Bayouth are the same person.

Therefore, any causes of action existing at the time of 4

filing for bankruptcy must be included in a debtor’s bankruptcy

schedules. 11 U.S.C. § 521. In some circumstances, however, the

debtor may be entitled to exempt the cause of action from the

3

Castellanos Bayouth. The plaintiffs’ obscure references to 

bankruptcy proceedings buried in other filings were insufficient

to notify the court of Castellanos’s petition. It appears, 1

however, that the automatic stay does not apply here. Instead, 2

the notice of the bankruptcy proceeding raises a question as to

whether Castellanos, who is a plaintiff in this case and the

debtor in the bankruptcy proceeding, has standing to prosecute

his claims here.3

2. Standing.

“Generally speaking, a pre-petition cause of action is the

property of the Chapter 7 bankruptcy estate.” Parker v. Wendy’s 4

Case 1:05-ds-00021-JD Document 17 Filed 08/17/05 Page 3 of 8
property of the estate. See, e.g., Howe, 193 F.3d at 61; Wiseman

v. Pittsburgh Nat’l Bank, 942 F.2d 867, 870 (4th Cir. 1991).

4

Int’l, Inc., 365 F.3d 1268, 1272 (11th Cir. 2004) (interpreting

11 U.S.C. § 541(a)(1)); see also Howe v. Richardson, 193 F.3d 60,

61 (1st Cir. 1999). Once a Chapter 7 petition is filed and the

trustee is appointed, unless the cause of action is exempt or

abandoned by the trustee, the debtor is no longer a real party in

interest in his pending suit and instead the trustee is the

proper party. See Parker, 365 F.3d at 1272; Turner v. Cook, 362

F.3d 1219, 1226-26 (9th Cir. 2004). Therefore, only the trustee

has standing to pursue the debtor’s claims or a pending lawsuit. 

See, e.g., Parker, 365 F.3d 1272; Barger v. City of Cartersville,

348 F.3d 1289, 1292 (11th Cir. 2003); Detrick v. Panalpina, Inc.,

108 F.3d 529, 535 (4th Cir. 1997); In re Educators Group Health

Trust, 25 F.3d 1281, 1284 (5th Cir. 1994); Dimaio Family Pizza &

Luncheonette, Inc. v. Charter Oak Fire Ins. Co., 349 F. Supp. 2d

128, 132 (D. Mass. 2004).

Based on the record provided here, the trustee in

Castellanos’s bankruptcy case, John A. Zerbe, has not abandoned

the suit. He also has not sought to substitute himself on behalf

of the debtor’s estate, in place of Castellanos, as a plaintiff

in this action. Castellanos lacks standing to proceed as a

plaintiff in this case. Therefore, Zerbe shall file a motion to

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substitute or a notice of abandonment of the cause of action

within the time allowed by this court, failing which Castellanos

will be dismissed from the suit for lack of standing and his

claims will be dismissed for failure to prosecute.

3. Affidavit.

In the “Urgent Notice,” the plaintiffs explain that the

trustee in the bankruptcy proceeding, Zerbe, has applied for the

appointment of an attorney to act as his representative in

Castellanos’s civil suit. In that application, Zerbe requests

the appointment of Castellanos to represent Zerbe in this case. 

Zerbe states in his motion: “That to the best of my knowledge

and belief, Alfredo A. Castellano [sic] Bayouth Esq. is a

‘disinterested person’,[sic] as said term is defined by 11 USC

101 (14).” Castellanos provided his affidavit in support of

Zerbe’s motion, in which he states in pertinent part: “That to

the best of my knowledge and belief, the undersigned [Alfredo

Castellanos] is a ‘disinterested person’, [sic] as said term is

defined in 11 USC 101 (14) . . . has no connection with debtor .

. . .” 

Because, as the court is assuming at this point, Castellanos

is the debtor in the bankruptcy proceeding, the court does not

understand the meaning of his statement in his affidavit that he

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has no connection with the debtor. Castellanos shall provide an

explanation for that statement within the time allowed by the

court. If the affidavit statement is not correct, Castellanos

shall immediately provide a corrected and accurate affidavit to

the bankruptcy court.

B. Recusal

As part of the plaintiffs’ “Urgent Notice,” they state that

certain things “were improperly addressed and adjudicated by this

Court in its Order dated July 14th, 2005.” They also state that

they intend to seek this judge’s recusal due to “improper rulings

since your Honor was assigned to the present case.” The court

again notes that the plaintiffs failed to file any motion seeking

reconsideration or clarification of the July 14, 2005, order. 

Counsel for the plaintiffs would be well advised to familiarize

himself with the law governing recusal. See, e.g., Liteky v.

United States, 510 U.S. 540, 554 (1994); Obert v. Republic

Western Ins. Co., 398 F.3d 138, 145 (1st Cir. 2005). 

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Conclusion

The plaintiffs shall file a notice on or before September 1,

2005, to clarify whether Alfredo Castellanos and Alfredo

Castellanos Bayouth are the same party in this action and to

explain the statement in Alfredo Castellanos’s affidavit

submitted in his bankruptcy proceeding that he has no connection

to the debtor in that proceeding. If Castellanos’s statement in

his affidavit is not correct, he shall immediately notify the

bankruptcy court of the error and file a corrected and accurate

affidavit in that court on or before September 1, 2005. 

If Alfredo Castellanos and Alfredo Castellanos Bayouth are

the same person, on or before September 9, 2005, John A. Zerbe,

trustee in the bankruptcy proceeding, shall file a motion to

substitute himself for Alfredo Castellanos in this case or a

notice of abandonment of the cause of action, failing which

Castellanos will be dismissed from the suit for lack of standing

and his claims will be dismissed with prejudice for failure to

prosecute.

Because of the confusion as to the proper parties as

plaintiffs in this suit, the deadline for the plaintiffs to

respond to the defendant’s pending motion to dismiss, filed on

July 29, 2005, is extended to September 16, 2005.

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The Clerk of Court, District of New Hampshire, will send

copies of this order to Judge Sara E. De Jesus Kellogg, United

States Bankruptcy Court, District of Puerto Rico, with reference

to In re Alfredo Antonio Castellanos Bayouth, 04-22496-SEK7,

filed Nov. 8, 2004, and to John A. Zerbe, Trustee, 165 Ave. De

Diego Urb San Francisco, San Juan, PR 00927.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

 (Sitting by designation.)

August 17, 2005

cc: Alfredo Castellanos-Bayouth, Esquire

Angel E. Rotger-Sabat, Esquire

USDC-PR, Clerk

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