Christopher D Wyman - Adversary Proceeding

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION - FLINT

IN RE:

Case No. 12-32264-dof

CHRISTOPHER D. WYMAN, Chapter 7 Proceeding

Debtor. Hon. Daniel S. Opperman

______________________________________/

SAMUEL D. SWEET,

Plaintiff/Counter-Defendant,

v. Adversary Proceeding

Case No. 19-03018-dof

BARBARA DUGGAN,

Defendant/Counter-Plaintiff.

______________________________________/

OPINION DENYING FRCP 59(e) MOTION TO MODIFY/ALTER/AMEND OPINION

REGARDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Introduction

Defendant/Counter-Plaintiff Michael Tindall filed a Motion to Modify/Alter/Amend

Opinion Regarding Plaintiff’s Motion for Summary Judgment arguing that the Court ignored

United States Supreme Court precedent. Because the Court finds the cases cited by Mr. Tindall

do not support his position, the Court denies Mr. Tindall’s Motion.

Jurisdiction

This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157(a). This

is a core proceeding under 28 U.S.C. § 157(b)(2)(A) (matters concerning the administration of the

estate).

Background

Since the instant Motion seeks to modify, alter or amend the December 28, 2022 Opinion

of this Court, the Court reproduces that Opinion:

OPINION REGARDING PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT

Introduction

Plaintiff, Samuel D. Sweet, seeks summary judgment as to the counter-

claims of Defendant, Michael Tindall. Mr. Tindall responded to this motion and

the Court heard oral arguments on November 8, 2022. Subsequently, Mr. Tindall

has filed various pleadings with this Court that touch on issues raised in this

adversary proceeding and at oral argument. For the reasons stated in this Opinion,

the Court grants Plaintiff’s Motion for Summary Judgment.

Background

Plaintiff originally objected to the secured status of the claim of Barbara

Duggan. Because the relief sought was more appropriate in an adversary

proceeding, this proceeding was opened. A portion of Ms. Duggan’s claim was

assigned to Mr. Tindall. Mr. Tindall filed responses and a counter-claim, and

Plaintiff filed a response. Subsequently, Mr. Tindall and Ms. Duggan filed a

Motion to Withdraw Reference. The District Court for the Eastern District of

Michigan heard oral arguments and issued an Order Denying Motion to Withdraw

Reference (#1) and Administratively Closing Case on August 22, 2019. This Order

states:

On March 18, 2019, Sweet commenced an Adversary

Proceeding against Defendants Tindall and Duggan (collectively,

“Defendants”) to avoid the enforcement of Duggan’s Judgment Lien

against the real property. (Adversary No. 19-03018, Doc # 1) In the

Adversary Proceeding, Sweet alleged that Duggan failed to renew her

Judgment Lien five years from the original filing date pursuant to Mich.

Comp. Laws § 600.2809. (Id.) On March 22, 2019, Defendants filed a

Counter Complaint, which included three counterclaims, including:

Declaratory Judgment (Claim I); Breach of Fiduciary Duty and Waste

under 11 U.S.C. § 704 (Claim II);1 and Abandonment under 11 U.S.C.

§ 554(b) (Claim III). (Adversary No. 19-03018, Doc # 11) Claims I and

III are now moot because the real property has been sold. (Doc # 1, Pg

ID 3)

On June 13, 2019, Defendants filed a Motion to Withdraw

Reference pursuant to 28 U.S.C. § 157(d). (Doc # 1) According to

Defendants, the circumstances of this case “create both grounds for

mandatory withdrawal of the reference, and, ‘cause’ for permissive

withdrawal of the reference.” (Id. at Pg ID 4) In addition to their request

to withdraw the reference, Defendants request that the Court stay all

further proceedings in the Bankruptcy Court and expedite the hearing

on this Motion. (Id. at 5.) A Response was filed on June 17, 2019, and

a Reply was filed on June 19, 2019. (Doc # 3; Doc # 5) A hearing was

held on this matter on July 10, 2019.

. . .

A. Mandatory Withdrawal

Defendants request that the Court exercise its authority to

withdraw the reference pursuant to 28 U.S.C. § 157(d). Defendants

argue that Claim II pertains to a non-core state law tort claim, which

not only entitles them to a jury trial, but also prevents the Bankruptcy

Court from having the subject matter jurisdiction necessary to hear their

Claim. Without going into any detail, Defendants contend that the

courts in Stern v. Marshall, 564 U.S. 462 (2011), Waldman v. Stone,

698 F.3d 910 (6th Cir. 2012), and Exec. Benefits Ins. Agency v. Arkison,

573 U.S. 25 (2014), found that claims such as theirs constitute non-core

proceedings.

In response, Sweet argues that Defendants’ Claim is a core

matter because it concerns and affects the administration of the

bankruptcy estate that is at issue. Sweet claims that courts have

considered this issue, and ruled that a lawsuit against a trustee is a core

matter. Sweet’s contention is premised on his belief that he could not

have breached a fiduciary duty, because under Michigan law, a trustee

only has a duty to the bankruptcy estate and not to each individual

creditor. Further, Sweet attempts to distinguish the instant case from

Waldman and Stern, and asserts that those cases involved a debtor and

a creditor, as opposed to this case, which includes a trustee and

creditors.

The determinative issue in this case is whether a Breach of

Fiduciary Duty and Waste claim under 11 U.S.C. § 704 constitutes a

“core proceeding” under 28 U.S.C. § 157(b)(2). Congress has provided

a non-exhaustive list of “core” matters in § 157(b)(2), including: 1)

matters concerning the administration of the estate; 2) counterclaims

by the estate against persons filing claims against the estate; 3)

proceedings to determine, avoid, or recover preferences and fraudulent

conveyances; 4) orders to turn over property of the estate; and 5)

confirmation of plans. 28 U.S.C. § 157(b)(2). A bankruptcy court may

hear and determine a core proceeding, unless a party demands a jury

trial. 28 U.S.C. § 157(b)(1), (e). Absent consent of the parties, the

bankruptcy judges will conduct hearings and file proposed findings of

fact and conclusions of law on non-core proceedings. E.D. Mich. LR

83.50(a)(3).

The Court finds that Claim II clearly falls under the core

proceedings category because it is premised on Sweet’s potential

liability for violating 11 U.S.C. § 704. § 157(b)(2)(A) straightforwardly

indicates that core proceedings include “matters concerning the

administration of the estate.” Claim II is based on Defendants’

argument that Sweet failed “to protect and preserve property of the

Bankruptcy Estate for the benefit of the creditors.” (Adversary No. 19-

03018, Doc # 11) Defendants’ Claim directly relates to the manner in

which Sweet allegedly carried out his obligations while administering

the estate. See 28 U.S.C. § 157(b)(2).

Defendants have argued that their Claim is a state law tort

claim, which therefore would require the Court to determine that it

should be deemed a non-core proceeding. The Court is unconvinced by

such an argument. In Defendants’ Counter Complaint, they determined

that they would bring forward a Breach of Fiduciary Duty and Waste

claim pursuant to 11 U.S.C. § 704. There was no mention of any state

law violations. The Court will not allow Defendants to now make such

an argument because it is convenient for them. Claim II is based on

federal law and the Court will assess Defendants’ Claim as such for

purposes of the instant Motion.

Defendants additionally contend that the courts in Stern,

Waldman, and Arkison found that claims similar to theirs were non-

core proceedings. The difference between those three cases and the

instant case however, is that those cases each assessed state law claims.

As mentioned, Claim II is not premised on state law and therefore,

those cases are not analogous to the present case.

Since the proceeding here is a core proceeding, the Court must

assess whether Defendants are entitled to mandatory withdrawal. There

are three conditions in the statute which must be met to withdraw a case

or proceeding under the mandatory withdrawal provision in § 157(d):

1) the movant is a party; 2) the motion is timely; and 3) the resolution

of the proceeding before the Bankruptcy Court requires consideration

of both Title 11 and another federal law regulating organizations or

activities affecting interstate commerce. In re Baldwin–United Corp.,

47 B.R. 898, 899 (S.D.Ohio 1984).

Here, the Court finds that Defendants have not satisfied all three

prongs of the mandatory withdrawal analysis. The first prong has been

met as to Duggan because she is a party to the underlying bankruptcy

action. The second prong has been satisfied. Courts have determined

that something will be considered timely if it is done at the “first

reasonable opportunity.” In re Baldwin–United Corporation, 57 B.R.

751, 753 (S.D.Ohio 1985). Courts have further explained that

timeliness requires that action be taken without undue delay and must

be evaluated in the context of the specific situation. Id. The Adversary

Proceeding commenced on March 18, 2019, and the present Motion

was filed on June 13, 2019. The Court determines that a period of

approximately three months may be considered timely even though

there does not appear to be a reason why Defendants could not have

filed the instant Motion sooner, and Defendants have not explained

why they waited almost three months to file their Motion. Finally, the

Court finds that the third prong has not been met because the only law

at issue is 11 U.S.C. § 704. No other “federal

law regulating organizations or activities affecting interstate

commerce” has been referenced by Defendants in relation to Claim II

and they have not argued otherwise.

B. Discretionary Withdrawal

Defendants argue that the Court should alternatively exercise

its authority pursuant to 28 U.S.C. § 157(d)’s discretionary withdrawal

provision. Regarding discretionary withdrawal, it appears that

Defendants insist that the Court should use its discretionary authority

to withdraw the reference since the Bankruptcy Court relocated from

Flint, Michigan to Bay City, Michigan. Defendants seemingly argue

that this relocation will make it more difficult for them and their

counsel to appear at subsequent proceedings. Defendants assert that

this case should be heard in this Court because it would be less

burdensome for them and their counsel to travel to Detroit, Michigan

as opposed to Bay City, Michigan. The Court notes that Sweet did not

address Defendants’ argument pertaining to a potential discretionary

withdrawal.

Section 157(d) grants the district court the discretion to

withdraw the reference for “any case or proceeding referred under this

section, on its own motion or on timely motion of any party, for cause

shown.” In considering a withdrawal motion, “whether a proceeding is

core or non-core…is a central question.” In re Appalachian Fuels, LLC,

472 B.R. 731, 2012 WL 1344984 at *4 (E.D.Ky.2012). A district court

should first evaluate whether the claim is core or non-core and then

turn to the other factors. Id. Courts have considered the following

factors to determine whether cause exists to withdraw the reference: 1)

judicial economy; 2) uniformity in Bankruptcy administration; 3)

reducing forum shopping and confusion; 4) fostering economical use

of the debtor's and creditor's resources; 5) expediting the bankruptcy

process; and 6) the presence of a jury demand. Id. at *3. Other courts

in this circuit have found that discretionary withdrawal of reference

requires “compelling” cause. Id.

The Court finds that the justification offered by Defendants is

not compelling. While the Court understands that the relocation of the

Bankruptcy Court might be a hardship for Defendants as it relates to

their travel to future proceedings, the Court does not believe that it will

impose a burden on Defendants that is significant enough for the Court

to exercise its discretion to withdraw the reference.

C. Jury Trial

Defendants additionally assert that they are entitled to a jury

trial before this Court and “have not and do not consent to the

Bankruptcy Court hearing and/or entering Judgment on Count II.” (Doc

# 1, Pg ID 4) Parties may consent to a jury trial before the Bankruptcy

Court if all parties so agree. 28 U.S.C. § 157(e) states:

If the right to a jury trial applies in a proceeding that may be

heard under this section by a bankruptcy judge, the bankruptcy

judge may conduct the jury trial if specially designated to

exercise such jurisdiction by the district court and with the

express consent of all the parties.

28 U.S.C. § 157(e). Considering that Defendants do not consent to a

jury trial in the Bankruptcy Court, but still demand a jury trial, the

referral of the case may be withdrawn by the District Court. However,

Defendants have not shown that they are entitled to a jury trial as to

Claim II. As argued by Sweet, as a trustee, he has no duty to the

creditors, only to the bankruptcy estate under Michigan law. The Court

denies Defendants’ request for a jury trial at this time. If it is determined

that Defendants are entitled to a jury trial before this Court, the Court

finds that in the interest of judicial economy, the Bankruptcy Court

should complete the pre-trial portion of this case. Other courts have

similarly found this approach to be appropriate in these instances. See

In re Collins & Aikman Corp., No. 05-55927, 2006 WL 6584164, at *2

(E.D. Mich. June 15, 2006); see also In re Solar Stamping & Mfg., LLC,

No. 08-13433, 2008 WL 4239146, at *1 (E.D. Mich. Sept. 10, 2008).

After pre-trial matters conclude, and the case is ready for trial, the

parties and the Bankruptcy Court will then notify the Court, and a final

pretrial conference and date for the jury trial will be set.

On August 29, 2019, this Court held a status conference regarding this

matter in conjunction with related matters. Mr. Tindall appeared and advised the

Court he anticipated filing a Motion for Reconsideration with the District Court or

taking an appeal to the Sixth Circuit Court of Appeals. The Court was advised he

would notify this Court of the outcome of any such action. The Court was not

advised of any appellate status until the Court held a routine status conference

regarding this matter on September 6, 2022. Thereafter, a flurry of pleadings have

been filed with the Court. Two pleadings filed by Mr. Tindall, Dockets #107 and

#108, restate arguments already raised and decided by the District Court in its

August 22, 2019 Order.

The first pleading after the September 6, 2022 conference, however, is

Plaintiff’s Motion for Summary Judgment. As the District Court noted and

concluded, Counts I and III are moot and Plaintiff renewed that argument. As to

Count II – Breach of Fiduciary Duty and Waste, Plaintiff argues that he has

immunity, citing Grant, Konvalinka & Harrison, PC v. Banks, Morgan, and

Richard Banks & Assoc., P.C. (In re McKenzie), 716 F.3d 404 (6th Cir. 2013), cert.

den., 571 U.S. 955 (2013).

Mr. Tindall replied, denying that Plaintiff was entitled to immunity and

pointing out that Plaintiff did not plead immunity in his response to the counter-

claim. Plaintiff in turn amended his response to include the immunity defense. Mr.

Tindall countered this maneuver by filing a Motion to Strike on November 8, 2022

(Docket #99) which Plaintiff replied to on November 22, 2022 (Dockets #110 and

#112).

The Court heard oral arguments on November 8, 2022 and took this matter

under advisement. The Court has reviewed all pleadings filed after September 6,

2022 and finds that additional oral argument is not necessary.

Statement of Legal Authorities and Standards

Summary Judgment Standard

Federal Rule of Civil Procedure 56 is made applicable in its entirety to

bankruptcy adversary proceedings by Federal Rule of Bankruptcy Procedure 7056.

Rule 7056(c) provides that summary judgment is proper "if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law." See Choate v. Landis

Tool Co., 486 F. Supp. 774 (E.D. Mich. 1980). The moving party bears the burden

of showing the absence of a genuine issue of material fact as to an essential element

of the non-moving party's case. Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th

Cir. 1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). The burden then

shifts to the nonmoving party once the moving party has met its burden, and the

nonmoving party must then establish that a genuine issue of material fact does

indeed exist. Janda v. Riley-Meggs Indus., Inc., 764 F. Supp 1223, 1227 (E.D.

Mich. 1991).

Amendments to Pleadings Standard

Federal Rule of Civil Procedure 15(a)(2) states:

(a) Amendments Before Trial

. . .

(2) Other Amendments. In all other cases, a party may amend its

pleading only with the opposing party’s written consent or the court’s leave. The

court should freely give leave when justice so requires.

This Rule is applicable in bankruptcy adversary proceedings by Federal Rule of

Bankruptcy Procedure 7015.

Analysis

The application of immunity is dispositive to the remaining count in the

counter-claim. The first and third counts are moot and Mr. Tindall did not address

either count in his response or at oral argument. To get to the application of the

immunity defense, the Court must first determine if that defense has been waived.

In his brief and in oral argument, Mr. Tindall makes much of the failure of

Plaintiff to plead immunity in his initial response. Mr. Tindall is correct, but that

alone does not completely address the issue.

First, the authority cited by Mr. Tindall, Summe v. Kenton Cty. Clerk’s

Office, 604 F.3d 257, 269-70 (6th Cir. 2010), does hold that qualified immunity can

be waived when raised sua sponte by the trial court. Moreover, Haskell v.

Washington Twp., 864 F.2d 1266, 1273 (6th Cir. 1988) did prohibit the raising of

an immunity defense because of length of time and extensive litigation, as well as

three published opinions.

Here, neither the Summe or Haskell factors are present. Plaintiff raised the

issue of immunity as early as May 23, 2019 in his Amended Motion for Summary

Judgment of Counter Claims:

C. Immunity. The Trustee believes that he has provided a qualified

judicial immunity in the Sixth Circuit Court of Appeals and as such this

claim is not well founded. Pursuant to In re McKenzie, 716 Fed 3rd 404

Sixth Circuit 2013 the Trustee’s actions as long as within the scope of

his employment and taken pursuant to proper court orders are immune

from a potential claim individually by a creditor or other party in

interest. Ironically, the only exception to this appears to be when a

Trustee wrongfully seizes property that is found not to be property of

the estate without first obtaining a Court order. As the Counter Plaintiff

had requested and had specifically provided in their Counter Claim that

the Trustee take specific action prior to obtaining a determination that

this property did constitute property of the estate. The Trustee further

relies upon In re Bryan, 308 B.R. 583 (2004), In Re Hildebrand, 205

B.R. 278 (1997) and Weissman v. Hassett, 47 B.R. 462 (1985) wherein

a Trustee is provided with immunity for claims provided he acts within

the scope of his duty and pursuant to bankruptcy court orders. This

Trustee has done exactly that and as such sees no basis for Counter

Plaintiff’s claim.

Likewise, time has passed because Mr. Tindall sought appellate review of

the District Court’s August 22, 2019 Order and he neglected to advise the Court of

the completion of his efforts. Moreover, there has not been any activity, much less

extensive litigation in this adversary proceeding. Accordingly, the Court finds and

concludes that Plaintiff did not waive his immunity and that Mr. Tindall’s Motion

to Strike Plaintiff’s Pleading should be denied.

The Court next turns to the applicability of Plaintiff’s immunity defense.

The Plaintiff as a Trustee was tasked with the liquidation of Debtor’s assets, which

includes the 1011 Jones Road property. He sought out purchasers for the property

but was not as successful as Mr. Tindall would have liked. Once Plaintiff did obtain

a potential purchaser, he duly filed a motion with this Court and noticed creditors

and parties in interest, including Mr. Tindall and Ms. Duggan. Mr. Tindall and Ms.

Duggan objected, and Plaintiff filed an amended motion to transfer interest of the

1011 Jones Road property to the sale proceeds. Objections were again raised and

overruled by the Court, and an Order approving the sale was entered on March 13,

2019. As summarized in the Trustee’s Report of Sale and Seller’s Settlement

Statement filed on May 30, 2019 in the bankruptcy case of Christopher Wyman,

the 1011 Jones Road property was sold and a closing held on May 29, 2019 with

the interests of Ms. Duggan and Mr. Tindall paid.

Federal Rule of Civil Procedure 15 allows for the amendment of pleadings

and applies in this instance. Mr. Tindall was on notice of Plaintiff’s immunity

defense as early as May 2019 and is not prejudiced by the amendment of Plaintiff’s

defenses. Justice requires this Court to give leave to Plaintiff in this situation, so

the Court allows Plaintiff to amend his affirmative defenses as stated in his October

31, 2022 pleading found at Docket #93.

Plaintiff has acted within his statutory authority as a bankruptcy trustee

under 11 U.S.C. § 704, and has the immunity granted to him by Grant, supra. More

importantly, when a trustee is acting pursuant to a court order, such as in this case

with the March 13, 2019 Sale Order, the trustee is protected by absolute or derived

immunity. See Phoenician Mediterranean Villa, LLC v. Swope (In re JBS

Properties, LLC), 872 F.3d 138, 142 n.3 (3d Cir. 2017) (citing In re Harris, 590

F.3d 730, 742 (9th Cir. 2009); Boullion v. McClanahan, 639 F.2d 213, 214 (5th Cir.

Unit A. Mar. 1981)). As stated by the United States Supreme Court:

“The practice is well established by which Trustees seek instructions

from the Court, given notice to creditors and interested parties, as to

matters which involve difficult question of judgment ……but had it

been authorized, at least the assenting creditor might have found

themselves estopped to question the transaction.”

Mosser v. Darrow, 341 U.S. 267, 274 (1951).

Plaintiff did exactly that in this case and is entitled to immunity, which

compels the Court to grant his Motion for Summary Judgment.

Conclusion

For the reasons stated in this Opinion, the Court GRANTS Plaintiff’s

Motion for Summary Judgment (Docket #88).

The Court entered an Order consistent with its Opinion on December 28, 2022. Mr. Tindall

seeks relief because he argues this Court disregarded certain Supreme Court authority “prohibiting

this Court from sua sponte asserting/preserving ‘defenses’ not raised by the parties.” (Docket No.

125, at 4).

After analysis of prior pleadings and the instant Motion, the Court issues this Opinion.

Analysis

Mr. Tindall starts his argument by citing Wood v. Milyard, 566 U.S. 463 (2012), a habeas

petition case. On its face, habeas petition cases differ from civil cases, but further analysis is

worthwhile. Mr. Tindall’s initial cite to Wood excludes the following sentence:

“Ordinarily in civil litigation, a statutory time limitation is forfeited if not

raised in a defendant’s answer or in an amendment thereto.”

Id. at 470 (quoting Day v. McDonough, 547 U.S. 198, 202 (2006)).

In this case, Plaintiff raised the issue of immunity in his May 23, 2019 Amended Motion

for Summary Judgment. Moreover, he requested leave to amend his Answer. Plaintiff’s defense

was raised per Rule 15 and the Wood language.

Wood, however, continues as follows:

Consistent with Granberry and Day, we decline to adopt an absolute rule barring a

court of appeals from raising, on its own motion, a forfeited timeliness defense.

The institutional interests served by AEDPA’s statute of limitations are also present

when a habeas case moves to the court of appeals, a point Granberry recognized

with respect to a nonexhaustion defense. We accordingly hold, in response to the

first question presented, see supra, at 1831, that courts of appeals, like district

courts, have the authority – though not the obligation – to raise a forfeited timeliness

defense on their own initiative.

Id. at 473.

After recognizing there is no absolute rule barring a court of appeals from raising on its

own a defense, the Wood Court then analyzed the case before it and instructed the Court of Appeals

that the District Court properly did not consider a defense.

Another lesson springs from Wood. Affirmative defenses not asserted at the trial level

should not surface the first time on appeal. Here, the issue of immunity surfaced in 2019 and

continued in place. To clarify the pleadings, Plaintiff timely sought leave to add this affirmative

defense under Rule 15. Both the Supreme Court and Rule 15 standards were met.

Mr. Tindall next argues:

The US Supreme Court has, repeatedly, made clear that federal courts are

not at liberty to sua sponte assert defenses waived by a party in litigation. Arizona

v. California, 530 US 392, 413-13 (2000). Doing this erodes the principle of party

presentation basic to the neutral system of adjudication maintained by United States

courts. Id. In a neutral system, a defendant should be the party pointing out the

weaknesses of a plaintiff’s claim. If the Court raises this argument on the

defendant’s behalf, the system is no longer neutral, and the Court has become the

defendant’s representative. Henderson ex rel. Henderson v. Shinseki, 131 S. Ct.

1197, 1202 (2011) (The federal system is an adversarial system of justice. If

the system functions normally, “courts are generally limited to addressing the

claims and arguments advanced by the parties.”) Parties are obliged to present

facts and legal arguments before a neutral and relatively passive decision-maker.”

Eriline Co. S.A. v. Johnson¸ 440 F.3d 648, 654 (4th Cir. 2006).

In Henderson, the Court stated:

“This reasoning overlooks the importance of procedural default

rules in an adversary system, which reliefs chiefly on the parties to

raise significant issues and present them to the courts in the

appropriate manner at the appropriate time for adjudication. See

Castro v. United States, 540 U.S. 375, 386 (2003) (SCALIA, J.,

concurring in part and concurring in judgment) (“Our adversary system

is designed around the premise that the parties know what is best for

them, and are responsible for advancing the facts and arguments

entitling them to relief”). Procedural default rules are designed to

encourage parties to raise their claims promptly and to vindicate

“the law’s important interest in the finality of judgments.”

Massaro, 538 U.S., at 504. The consequence of failing to raise a claim

for adjudication at the proper time is generally forfeiture of that claim.

The Court confirmed this in Wood, at 1830, when it stated:

“Our precedent establishes that a court may consider a statute of

limitations or other threshold bar the State failed to raise in answering

a habeas petition. Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct.

1671, 95 L.Ed.2d 119 (1987) (exhaustion defense); Day v.

McDonough, 547 U.S. 198, 202, 126 S.Ct. 1675, 164 L.Ed.2d 376

(2006) (statute of limitations defense). Does court discretion to take up

timeliness hold when a State is aware of a limitations defense, and

intelligently chooses not to rely on it in the court of first instance? The

answer Day instructs is “no”: A court is not at liberty, we have

cautioned, to bypass, override, or excuse a State’s deliberate waiver of

a limitations defense. Id., at 202, 210, n. 11, 126 S.Ct. 1675. The Tenth

Circuit, we accordingly hold, abused its discretion by resurrecting the

limitations issue instead of reviewing the District Court’s disposition

on the merits of Wood’s claims.”

In this case, Plaintiff filed a Motion for Summary Judgment, Mr. Tindall filed a Response,

and Plaintiff filed an Amended Motion for Summary Judgment which raised the issue of his

immunity. The parties presented their legal arguments and the Court decided the matter. Contrary

to the insinuation of Mr. Tindall, this Court did not sua sponte assert a waived defense. It properly

heard arguments, allowed Plaintiff to amend his pleadings under Rule 15 and then granted his

Motion for Summary Judgment. Since neither the record or the authorities cited by Mr. Tindall

compels any modification of the Court’s December 28, 2022 Opinion, the Court DENIES his

Motion.

The Court will enter an Order consistent with this Opinion.

Not for Publication

Signed on February 27, 2023 AEM,

By /s/ Daniel S. Opperman

at rT ~=Daniel S. Opperman

“ae” «=—Ss«Unnnited States Bankruptcy Judge

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