NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
B.J. McADAMS, INC., On behalf of the Bankruptcy Estate of
B.J. McAdams, Inc., Plaintiff-Appellant,
v.
GRAY & COMPANY, an Oregon corporation, Defendant-Appellee.
No. 92-36678.
United States Court of Appeals, Ninth Circuit.
Submitted March 10, 1994.*
Decided March 14, 1994.
Before: BROWNING, KOZINSKI and NOONAN, Circuit Judges.
MEMORANDUM**
B.J. McAdams, Inc. appeals the district court's dismissal of its complaint against Gray & Company. Everyone agrees that the complaint should have named the trustee as the plaintiff. The issue is whether the district court should have granted leave to substitute the proper party pursuant to Fed.R.Civ.P. 17.
The district court denied McAdams' Rule 17 motion to substitute the trustee as plaintiff because the bankruptcy court hadn't authorized the filing attorney's employment under 11 U.S.C. Sec. 327 and Bankruptcy Rule 2014. These provisions apply, however, when the trustee "employ[s]" an attorney. Here, Messrs. Harris and Pfister were employed by Professional Truck Auditing, Inc. (PTA). See ER at 98, 99, 105. That any collection action they brought would, of necessity, be on behalf of the trustee, see 11 U.S.C. Sec. 323, did not change the nature of their employment. PTA, after all, was footing their bill. ER 105. And their authority to sue on behalf of the trustee is clear. ER 33-34. Therefore, the district court erred in refusing leave to substitute the trustee as plaintiff under Rule 17.
REVERSED.