Glimcher Company v. Mullen

Filing 13

ORDER IS DENYING as moot appellant's emergency motion to dissolve the preliminary injunction (doc. 4 ), and GRANTING appellee's motion to dismiss the appeal (doc. 7 ). Signed by Judge Frederick J Martone on 12/12/2012.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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In re:
David J. Glimcher, et al.,
Debtors.

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The Glimcher Company;
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Appellant,
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vs.
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Brian J. Mullen, Chapter 7 Trustee,
Appellee.

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No. CV 12-02303-PHX-FJM
ORDER

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The court has before it appellant’s emergency motion to dissolve the preliminary

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injunction (doc. 4), appellee's response to the emergency motion (doc. 8), appellant's reply

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(doc. 9), appellee's motion to dismiss the appeal (doc. 7), appellant's response (doc. 11), and

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appellee's reply (doc. 12).

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On June 12, 2012, appellee filed a complaint in the bankruptcy court seeking to

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recover assets that debtor David J. Glimcher had transferred to the Glimcher Company.

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Count one of the complaint alleged that transfer of assets from debtor to the Glimcher

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Company is avoidable by the trustee under 11 U.S.C. § 547. On October 10, 2012, the

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bankruptcy court granted appellee's motion for summary judgment on count one. Appellee

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subsequently filed a motion for preliminary injunction and a motion for final judgment on

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count one. On October 22, 2012, the bankruptcy court issued a preliminary injunction

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against the Glimcher Company "to preserve the status quo and prevent dissipation of the

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assets that were obtained by the defendant from the debtor." In re David J. Glimcher, No.

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2:11-BK-15333-RJH (Bankr. Ariz. October 22, 2012), Doc. 55. Appellants then filed an

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emergency motion to dissolve the preliminary injunction. On November 16, 2012, the

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bankruptcy court entered final judgment on count one, requiring turn over of the assets that

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were obtained by the defendant from the debtor.

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As acknowledged by appellant, a preliminary injunction dissolves upon entry of final

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judgment. Appellant's Motion to Dissolve Preliminary Injunction at 7; Reply at 8; U.S.

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Philips Corp. v. KBC Bank, 590 F.3d 1091, 1093-94 (9th Cir. 2010). Here, the preliminary

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injunction dissolved on November 16, 2012, when the bankruptcy court entered final

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judgment requiring turn over of the assets subject to the injunction. Therefore, appellant's

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emergency motion to dissolve the preliminary injunction (doc. 4) is moot. Appellant

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concedes this. Appellant's Response to Motion to Dismiss Appeal at 7.

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IT IS ORDERED DENYING as moot appellant’s emergency motion to dissolve the

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preliminary injunction (doc. 4), and GRANTING appellee's motion to dismiss the appeal

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(doc. 7).

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DATED this 12th day of December, 2012.

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