McLorn et al v. Fleetwood Motor Homes of Indiana, Inc., et al.

Filing 24

ORDER hereby staying this lawsuit against Defendant Beaudry Only and placing it on inactive status until 6/1/09 (180 days). This lawsuit against Defendant Beaudry Only will be dismissed on 6/1/09 (180 days) pursuant to Rule 41(b) (lack of prosecution) unless prior to the scheduled dismissal date Plaintiff demonstrates in writing that Plaintiff has moved to lift the stay in the bankruptcy court (see order for details). Signed by Magistrate Judge Lawrence O Anderson on 12/3/08. (TLJ)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiffs, ) ) vs. ) ) Fleetwood Motor Homes of Indiana, Inc.,) d/b/a/ American Coach and Beaudry RV) ) Company, ) ) Defendants. ) Dana and Janet McLorn,

No. CV-08-1602-PHX-LOA ORDER

This case arises upon Defendant Beaudry RV Company's ("Beaudry") Notice of Filing Bankruptcy, filed on December 2, 2008, advising the Court and all parties that Defendant Beaudry filed a voluntary bankruptcy petition in the United States Bankruptcy Court, No. BK-08-16533-EWH, on November 18, 2008. (docket # 23) By virtue of the automatic stay imposed under 11 U.S.C. § 362(a)(1) with the filing of a bankruptcy petition, all pending matters against Defendant Beaudry will be stayed until further order of the Court. 11 U.S.C. § 362(a)(1); O'Donnell v. Vencor Inc., 466 F.3d. 1104 (9th Cir. 2006). On the Court's own motion, IT IS ORDERED hereby staying this lawsuit against Defendant Beaudry ONLY and placing it on inactive status until June 1, 2009 (180 days). This lawsuit against Defendant Beaudry ONLY will be dismissed on June 1, 2009 (180 days) pursuant to Rule 41(b) (lack of prosecution) unless prior to the

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scheduled dismissal date Plaintiff demonstrates in writing that Plaintiff has moved to lift the stay in the bankruptcy court but the request has not been ruled upon or has been denied; or Plaintiff has sought to reduce the claim(s) against the subject debtor Beaudry to judgment in the bankruptcy court in an adversary proceeding and the adversary proceeding has not yet been adjudicated despite Plaintiff's due diligence in seeking its resolution; or Plaintiff has timely demonstrated a reasonable basis for continuance of this lawsuit against Defendant Beaudry on inactive status. Any party may ask the Court to schedule an informal status conference before the 180-day period expires to inform the Court what action, if any, has been undertaken in the bankruptcy court that would permit this lawsuit against Defendant Beaudry to proceed. IT IS FURTHER ORDERED that the lawsuit/case against all other Defendants shall proceed as scheduled, Duval v. Gleason, 1990 WL 261364 (N.D. Cal. 1990), unless a motion to stay the entire case is timely filed and granted. Matter of Lockard, 884 F.2d 1171, 1179 (9th Cir. 1989) (citing generally A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, 999 (4th Cir. 1986), cert. denied, 479 U.S. 876 (1986) (automatic stay imposed under § 362(a)(1) is generally available only to the bankrupt and not to non-debtor third parties or co-defendants.). IT IS FURTHER ORDERED that all counsel shall use proper capitalization in all future captions as mandated by LRCiv 7.1(a)(3). Dated this 3rd day of December, 2008

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