# Christopher D Wyman - Adversary Proceeding

> United States Bankruptcy Court, E.D. Michigan · February 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10458758

## Case

- **Court:** United States Bankruptcy Court, E.D. Michigan
- **Decided:** February 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10458758

## Opinion text

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

15

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10458758. Public record. Not legal advice.