Chapter 11
No. 96-10123-CK

In Re:









Plaintiff, Alphonse Mourad, by and through counsel, respectfully requests this Honorable Court to reconsider its Order precluding Plaintiff from taking discovery in this matter. In the alternative, Plaintiff requests this Honorable Court to grant a stay in this action sufficient to allow the Plaintiff, acting Pro se, to pursue the Court's decision relative to discovery through an interlocutory appeal. In support of this motion, Plaintiff states as follows:

1. At a hearing on June 3, 2004, this Court precluded Plaintiff Alphonse Mourad from seeking any further discovery in this matter. During the hearing, Plaintiff's counsel objected to the preclusion of discovery and stated that no discovery order was entered in this action, and further, that the judge's pretrial order did not address the issue of discovery. The docket sheet does not reflect any order establishing express discovery deadlines. In fact, the docket sheet does not show the entry of the mandatory order as required by Fed. R. Civ. P. 16(b). See docket sheet generally.

2. On April 12, 2000, the Bankruptcy Appellate Panel of the First Circuit remanded the matter in relation to Plaintiff's Motion to Allow Administrative Claim Late. See Docket Entry 911. The Bankruptcy Court, Kenner, J. presiding, ordered the Trustee to file a statement relative to Mr. Mourad's claim. See Docket Entry 915, June 14, 2000. On July 18, 2000, the Trustee filed the above-described statement. See Docket Entry 920. On July 21, 2000 Plaintiff sought recusal of Kenner, J. See Docket Entry 921. On September 26, 2000, Kenner, J., denied Plaintiff's Motion for Recusal. See Docket Entry 941 and 942. On November 17, 2000 Attorney Dow filed an appearance on behalf of Alphonse Mourad. See Docket Entry 952. Attorney Dow subsequently filed a motion on behalf of the Plaintiff to terminate the November 16, 1998 Order which barred Plaintiff from the Courthouse. See Docket Entry 953. Further, Attorney Dow also filed a Motion for a Speedy Hearing on the Remand Order. See Docket Entry 954.

3. On December 4, 2000, Judge Kenner denied a Motion to lift the order barring the Plaintiff from the Courthouse. See Docket Entry 956. The Court preferred an approach in where they would provide Plaintiff limited access to the Courthouse as they felt his attendance at a hearing was necessary to provide him basic due process rights. On the same day, the Court denied Plaintiff's Motion for a Speedy Hearing. See Docket Entry 957. On December 7, 2000 Plaintiff requested a Jury Trial. Judge Kenner Ordered a statement relative to Jury Trial on January 5, 2001. See Docket Entries 958 & 959. In addition, on February 6, 2001, Plaintiff requested and extradited transfer to the District Court on this matter. See Docket Entry 962.

4. It appears from the docket sheets that the request for a Jury Trial and transfer to the District Court was denied in May of 2001. See Docket Entry 974. On June 7, 2001 Attorney Dow withdrew his appearance for the Plaintiff in this matter. The Motion to Withdraw was allowed on June 25, 2001. See Docket Entries 975 & 976. On July 16, 2001 Alphonse Mourad filed a motion, pro se, for expedited case management conference. See Docket Entry 978. In addition, on July 17, 2001 the Court granted the Trustee's motion to strike the Jury Trial. See Docket Entry 979. Further, the Court denied Plaintiff's motion for and expedited case management conference. See Docket Entry 980 & 981. On October 31, 2001, the Court ordered the parties to file pretrial statements. See Docket Entry 984.

5. As of the date of this Order, no discovery had been taken nor has the Court attempted to set a scheduling conference relative to discovery. However, pre-trial exhibits and witness lists have been exchanged. The Court simply indicated that it would schedule a trial when the pretrial process was complete. See Docket Entry 985. It appears that neither party made automatic disclosures as required under the Rules of Procedure. In addition, a review of the Docket Sheet does not establish any discovery order or schedule or any deadline on discovery.

6. During the course of the year and a half subsequent to the remand by the Bankruptcy Appellate Panel, the Bankruptcy declined to rule on its Motion for Recusal. Plaintiff, continuing as pro se, filed a request for a change of venue in light of the Court's refusal to rule on its Motion for Recusal. The Court denied the Motions for Recusal and Change of Venue. However, without explanation, the Court transferred the matter to the Western division of the Bankruptcy Court presiding in Worcester, Massachusetts. It should be noted that all parties in the Court were well aware at the time of this transfer that Alphonse Mourad was a resident of Boston Massachusetts and that he had significant health and financial problems. The transfer to the Western District of Massachusetts, which was not requested by the pro se Plaintiff, further added to the prejudices in this matter.

7. Federal Rule of Civil Procedure 16(b) creates a mandatory scheduling order requiring the Court to enter a scheduling order that limits the time (1) to join other parties and to amend the pleadings; (2) to file motions; and (3) to complete discovery. Fed. R. Civ. P. 16(b). The order shall issue as soon as practicable but in any event within 90 days after the appearance of a defendant and within 120 days after the pleading has been served. Id.

8. It is the Plaintiff's position that discovery is necessary in this matter and further, that the failure of this Court to set discovery deadlines should not be used as a device to deny Plaintiff of his basic due process rights.

9. Plaintiff seeks at least minimal discovery regarding these issues:

A. The actions of the trustee relative to the exercise of control over the stock of the debtor and the stockholder rights thereto;

B. The business conducted by the Creditor's Committee;

C. Applications for the Low Income Housing Tax Credit (hereinafter "Tax Credit") where the Trustee participated as an applicant;

D. Certifications and awards of the Tax Credit (or related rights) from state and federal agencies and any scheduling, deferral, rescheduling and recipient of any related Tax Credit;

E. Issues relating to the alleged failure of the trustee to apply for the Tax Credit on behalf of the debtor;

F. Trustee compensation and expenses.
Further, Plaintiff requests sufficient time to allow for the amendment of pleadings.

10. Plaintiff's position is buttressed by the fact that this Court set a deadline of July 14, 2004, for submission of a memorandum to assist the Court in making a determination as to which claims the Bankruptcy Appellate Panel has remand for consideration. See Order of Rosenthal, J., June 3, 2004. Further, this Court has set July 14, 2004, as the deadline for submitting supplemental papers related to the creditors, trustees, Motion for Judgment on the Pleadings. Id. Under Rule 12 of the Federal Rules of Civil Procedure, a Motion for Judgment on the Pleadings which raises material outside of the four quarters of the claims constitutes a Motion for Summary Judgment. See Fed. R. Civ. P. 12. Under such circumstances, the Plaintiff is entitled to limited discovery for purposes of addressing such a motion. See Fed. R. Civ. P. 56(f).

11. In sum, the Court's preclusion of discovery and failure to issue a comprehensive scheduling order in this matter works such a prejudice upon the Plaintiff as to deny him his basic due process rights. The Plaintiff has been precluded from seeking basic information necessary to support his claims. Further, the Plaintiff is being denied a basic opportunity afforded to all litigants to conduct sufficient discovery necessary to allow him to reasonably amend claims and/or determine if additional claims should be pursued. This is particularly important, because the Trustee in this matter filed tax returns subsequent to the Order of the Bankruptcy Appellate Panel. The Trustee, at the time of those filings, knew that the very ability to file those returns was at issue. In addition, in light of this Court's Order closing the estate as to matters which were under appeal, it is questionable as to whether the Trustee had the authority to file tax returns on behalf of the corporation two years after it ceased its management of said corporation.
WHEREFORE, Plaintiff, Alphonse Mourad, by and through counsel, respectfully requests this Honorable Court to reconsider its Order precluding Plaintiff from taking discovery in this matter. In the alternative, Plaintiff requests this Honorable Court to grant a stay in this action sufficient to allow the Plaintiff, acting Pro se, to pursue the Court's decision relative to discovery through an interlocutory appeal.

Respectfully Submitted,
Alphonse Mourad
By his attorney,
Lester E. Riordan III
Law Offices of Lester E. Riordan III
81 Washington Street, Suite 8
Salem, Massachusetts 01970
(978) 825-1300
BBO #663725