Ashmore, Sr. v. CGI Group, Inc.
Dismissing the debtor as plaintiff is not a final order when the trustee is substituted.
- Rochelle Quick Take
View Rochelle Summary- Case Type:
- Consumer
- Case Status:
- Dismissed
- Citation:
- 16-1758-cv (2nd Circuit, Jun 21,2017) Not Published
- Tag(s):
- Ruling:
- Appeal of district court order dismissing individual plaintiff from case and allowing a bankruptcy trustee to substitute as plaintiff was dismissed for lack of appellate jurisdiction due to the interlocutory nature of the order entered by the district court.
- Procedural context:
- District court entered order dismissing individual plaintiff from a Sarbanes-Oxely whistleblower action, allowing a trustee of the plaintiff's bankruptcy case filed in New Jersey to substitute the individual as plaintiff in the action.
- Facts:
- Benjamin Ashmore commenced a suit against CGI Group and CGI Federal, alleging under the Sarbanes-Oxely Act, that the defendants fired him for objecting to their purported scheme to defraud the Federal Government. While the case was pending, Ashmore filed a pro se bankruptcy petition in the Bankruptcy Court of the District of New Jersey. He listed the whistleblower lawsuit in the Statement of Financial Affairs of his petition, but not as an asset in the petition's Schedule B. By a letter-agreement between Ashmore and his bankruptcy trustee, the latter agreed to allow Ashmore to continue as plaintiff in the whistleblower action as long as Ashmore met certain conditions, among which was that he would not assert that the litigation had been abandoned by the trustee, and would have any recoveries turned over his bankruptcy estate. After the district court denied summary judgment and scheduled the Sarbanes Oxley whistleblower claim for trial, the defendants, through new counsel, moved to dismiss for lack of jurisdiction, arguing that the lawsuit was property of the bankruptcy estate, that the trustee was the proper plaintiff, and that Ashmore did not have standing to litigate. In opposition to the motion, Ashmore argued that the trustee had abandoned the action. The district court granted the motion to dismiss, concluding that the Trustee had not abandoned the asset because Ashmore had failed to schedule it within the meaning of Section 554(c) of the Bankruptcy Code. At the same time, the district court allowed the trustee to move to be substituted as plaintiff. Ashmore appealed.
- Judge(s):
- Katzmann, Pooler and Lynch