Spirit Master Funding III LLC v. Cornett et al

Filing 29

ORDER, we amend our prior order 23 as follows: the claims against both defendants, J. Philip Cornett and James E. Cornett II, will be dismissed without prejudice without further notice on 12/30/13, unless the court is advised that the bankruptcy stay has been lifted, or a request for a lifting of the stay has not yet been ruled upon by the bankruptcy court. Signed by Senior Judge Frederick J Martone on 10/29/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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J Philip Cornett and James E Cornett, III,)
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Defendants.
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Spirit Master Funding III LLC,

No. CV 12-02270-PHX-FJM
ORDER

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The court has before it a Notice of Bankruptcy filing by defendant J. Philip Cornett
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(doc. 28). A review of the docket indicates that co-defendant James E. Cornett filed for
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bankruptcy twice, and we have scheduled his case for dismissal on January 24, 2014
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unless plaintiff gets the stay lifted. Order of Jul. 26, 2013 (doc. 23). On October 9,
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2013, we granted J. Philip Cornett’s Motion for extension of time within which to file a
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Response to plaintiff’s motion for summary judgment to October 23, 2013. Order of Oct.
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9, 2013 (doc. 27). Instead of filing a Response, he filed a Notice of filing a bankruptcy.
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Discovery has closed and the dispositive motion deadline has passed. Scheduling
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Order of Feb. 8, 2013 (doc. 15). Plaintiff’s motion for summary judgment is pending, and
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defendant’s time to respond expired on the day defendant J. Philip Cornett filed his
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Notice of filing bankruptcy. Thus, there will be no response.
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The automatic stay now operates with respect to both defendants. All that remains
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is the resolution of the motion for summary judgment, the filing of a proposed pretrial

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order on February 21, 2014, the final pretrial conference on February 26, 2014, and the

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firm trial date of March 11, 2014. Order of Feb. 8, 2013 (doc. 15).

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While we had earlier given plaintiff until January 24, 2014 to get the stay lifted as

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to co-defendant James E. Cornett, it now makes sense to consolidate the dismissal date

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for both defendants. Accordingly, we amend our prior order of Jul. 26, 2013 (doc. 23) as

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follows: It is ORDERED that the claims against both defendants, J. Philip Cornett and

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James E. Cornett II, will be dismissed without prejudice without further notice on

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December 30, 2013, unless the court is advised that the bankruptcy stay has been lifted, or

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a request for a lifting of the stay has not yet been ruled upon by the bankruptcy court.

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This gives the parties the opportunity to decide if they want to litigate these claims here or

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in the bankruptcy court. If plaintiff decides it wants to litigate here, it should move as

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soon as possible to get the stays lifted. We will not allow this case to languish on the

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docket during bankruptcy proceedings.

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DATED this 29th day of October, 2013.

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