Case 1:06-cv-01160-JB-SMV Document 176 Filed 03/11/10 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`YVETTE GONZALES, CHAPTER 7 TRUSTEE
`OF THE BANKRUPTCY ESTATE OF
`JEFFREY W. POTTER AND ON BEHALF OF
`SANTA FE BUSINESS PARK LLC, SUMMIT
`FLOORMART LLC, SUMMIT VALDES
`BUSINESS PARK, LLC, SUMMIT
`INVESTMENT CENTER LLC, AND EL LLANO
`SUMMIT CAJA DEL RIO LLC,
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`Plaintiff,
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`vs.
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` No. CIV 06-1160 JB/DJS
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`RICHARD P. COOK; EL LLANO COMPANY, INC.;
`VALLEY NATIONAL BANK; COMEAU, MALDEGEN,
`TEMPLEMAN & INDALL, LLP; GRAY HANDY; PAULA
`COOK; JOHN PATTERSON; ROBERT ENGEL; VERN BOWERS;
`SONNY OTERO d/b/a OTERO CONSTRUCTION COMPANY;
`PHASE ONE REALTY; ERNEST (“Ernie Romero”); W. JAMES
`METHANY; and SARCO CONSTRUCTION COMPANY,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`THIS MATTER comes before the Court on the Plaintiff’s Motion to Extend Time to
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`Respond to Defendant Sonny Otero’s Motion for Summary Judgment, filed July 21, 2009 (Doc. 165)
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`(“Motion to Extend Time”). The Court held a hearing on March 1, 2010. The primary issue is
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`whether the Court should grant Plaintiff Yvette Gonzales, Chapter 7 Trustee of the Bankruptcy
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`Estate of Jeffery W. Potter, an extension of time for her to respond to Defendant Sonny Otero’s
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`motion for summary judgment. For the reasons stated on the record, and for further reasons
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`consistent with those already stated, the Court denies the motion as moot.
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`On August 13, 2008, the Court dismissed all of Plaintiff Martin S. Friedlander’s claims
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`Case 1:06-cv-01160-JB-SMV Document 176 Filed 03/11/10 Page 2 of 5
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`against Otero, except for a claim for conspiracy. See Memorandum Opinion and Order, filed August
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`13, 2008 (Doc. 135).1 On October 19, 2008, Friedlander notified the Court that he no longer had
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`standing to prosecute the case. See Plaintiff’s Notice of No Further Prosecution of this Case due
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`to Present Lack of Standing, filed October 19, 2008 (Doc. 141). The notification did not seek
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`dismissal of the claims asserted in this action. On December 17, 2008, Otero filed a motion for
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`summary judgment on the remaining conspiracy claim asserted against him. See Motion at 1. In
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`March of 2009, Gonzales filed a motion seeking permission to substitute as the plaintiff in this case.
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`See Unopposed Motion to Substitute Trustee as the Party Plaintiff, filed March 2, 2009 (Doc. 146).
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`On March 5, 2009, the Court granted Gonzales permission to be substituted in as the party Plaintiff
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`in this action and to prosecute the claims brought in the action. See Stipulated Order to Substitute
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`Trustee Yvette Gonzales as Party Plaintiff, filed March 5, 2009 (Doc. 147).
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`Gonzales filed her motion for an extension of time to respond to Otero’s summary judgment
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`motion on July 21, 2009. See Motion to Extend Time at 1. In her motion, Gonzales represents that
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`Otero agreed to allow Gonzales additional time -- until July 22, 2009 -- within which to either
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`respond to Otero’s motion for summary judgment or to agree to dismiss Otero as a party from the
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`case. See Motion to Extend Time ¶ 3, at 2. Gonzales argues that she is attempting to resolve the
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`claim against Otero as expeditiously as possible and, to that end, she will abandon the claim. See
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`Motion to Extend Time ¶¶ 4-6, at 2. She contends that additional time is required to provide notice
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`to the Bankruptcy Court that she is abandoning the claim and to allow thirty days from the date the
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`Bankruptcy Court approves the abandonment for Debtor Jeffery Potter to file any objection to the
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`abandonment of the claim. See Motion to Extend Time ¶¶ 4-5, at 2. Further, if the Bankruptcy
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`1 The Court did not rule on the conspiracy claim at that time because Otero did not address
`the claim in his motion to dismiss. See Memorandum Opinion and Order at 6 (Doc. 135).
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`Case 1:06-cv-01160-JB-SMV Document 176 Filed 03/11/10 Page 3 of 5
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`Court denies the abandonment request, Gonzales argues that she will need an additional thirty days
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`to conduct discovery, in order to respond to Otero’s summary judgment motion. See Motion to
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`Extend Time ¶ 5, at 2.
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`On October 16, 2009, Gonzales filed a notice with the Court indicating that she has
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`abandoned the remaining conspiracy claim made in the lawsuit against Otero. See Notice to Court
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`of Chapter 7 Trustee’s Abandonment of Claims Against Sonny Otero and Request for Court to Take
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`Judicial Notice Thereof, filed October 16, 2009 (Doc. 169)(“Notice of Abandonment”). The notice
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`indicated that the Abandonment Notice filed in bankruptcy court on July 21, 2009 became effective
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`on August 11, 200[9]. See Notice of Abandonment ¶¶ 1-4, at 1-2.2
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`At the hearing, Dave Giddens, Gonzales’ attorney, argued that Gonzales’ Motion to Extend
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`Time to Respond to Defendant Sonny Otero’s Motion for Summary Judgment is moot, because
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`Gonzales’ claim against Otero has been abandoned and therefore she is no longer the party in
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`interest on this claim. See Transcript of Hearing at 3:4-17 (taken March 1, 2010)(Giddens)(“Tr.”).3
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`The Court asked Mr. Giddens and Jake E. Gallegos, Otero’s attorney, whether there were any
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`objections to the Court denying the motion as moot. The parties both conceded that the motion is
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`moot and should be denied. See Tr. at 3:18-4:2 (Court, Giddens, Gallegos).
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`IT IS ORDERED that Plaintiff’s Motion to Extend Time to Respond to Defendant Sonny
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`Otero’s Motion for Summary Judgment is denied as moot.
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`2 The Notice of Abandonment states: “Pursuant to F.R. B.P. 6007, the abandonment of the
`aforesaid claim became effective on August 11, 2007.” Notice of Abandonment ¶ 4, at 2. Rule
`6007 of the Federal Rules of Bankruptcy Procedure allows fourteen days from the date the notice
`of abandonment was mailed for objections. The Court, therefore, understands that Gonzales meant
`2009 and not 2007.
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`3 The citations to the transcript of the hearing refer to the court reporter’s original, unedited
`version. Any final transcript may have slightly different page and/or line numbers.
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`-3-
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`Case 1:06-cv-01160-JB-SMV Document 176 Filed 03/11/10 Page 4 of 5
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`________________________________
`UNITED STATES DISTRICT JUDGE
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`Counsel:
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`George Dave Giddens, Jr.
`Law Office of George “Dave” Giddens, P.C.
`Albuquerque, New Mexico
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`Attorneys for Plaintiff and Trustee Yvette Gonzales
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`J. E. Gallegos
`Gallegos Law Firm, P.C.
`Santa Fe, New Mexico
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`Attorneys for Defendant Sonny Otero d/b/a Otero Construction Company
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`Paul Maestas
`Wayne R. Suggett
`Maestas & Suggett, P.C.
`Albuquerque, New Mexico
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`Attorneys for Defendants Richard P. Cook,
` Sarco Construction Company, and
` El Llano Company
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`Briggs F. Cheney
`Law Office of Briggs F. Cheney
`Albuquerque, New Mexico
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`Attorneys for Defendant John Patterson
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`Eric M. Sommer
`Sommer, Udall, Hardwick, Ahern & Hyatt, LLP
`Santa Fe, New Mexico
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`Attorneys for Defendant Valley National Bank
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`-4-
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`Case 1:06-cv-01160-JB-SMV Document 176 Filed 03/11/10 Page 5 of 5
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`Jim Dines
`Michael A. Gross
`Steven J. Leibel
`Dines & Gross, P.C.
`Albuquerque, New Mexico
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`Attorneys for Defendants Comeau, Maldegen,
` Templeman & Indall, LLP, Paula Cook, and Grey Handy
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`-5-
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