Ghigliotti v. City of Novato et al

Filing 40

ORDER STAYING CASE. Signed by Judge Yvonne Gonzalez Rogers on 2/8/2012. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 2/8/2012)

UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JEROME J. GHIGLIOTTI,
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Plaintiff,
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Case No.: C-11-02774-YGR
ORDER REQUIRING RELIEF FROM
AUTOMATIC STAY

v.
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CITY OF NOVATO, et al.,
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Defendants.
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For the reasons set forth below, the Court hereby orders Defendants to obtain relief from the

Northern District of California

United States District Court

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Bankruptcy Court in the Northern District of California in light of the Notice of Automatic

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Bankruptcy Stay filed in this action on January 13, 2012.
On November 3, 2011, Defendants filed a Motion to Dismiss Second Amended Complaint

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Without Leave to Amend (FRCP Rule 12(b)(6)). Dkt. No. 31. The hearing was originally scheduled

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for December 1, 2011 and Plaintiff’s opposition should have been due on November 17, 2011. Civ.

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L.R. 7-3(a). On November 10, 2011, Plaintiff substituted himself into the matter, in propia persona,

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in place of his counsel. See Dkt. No. 32. According to Defendants, Plaintiff requested a continuance

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for the hearing on the Motion to Dismiss to permit him time to locate new counsel and oppose the

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motion. Defendants did not oppose this request. See Re-Notice of Defendants’ Motion to Dismiss,

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Dkt. No. 37. The hearing on the Motion to Dismiss was rescheduled for January 26, 2012. Dkt. No.

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34.

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Plaintiff never filed an opposition to the Motion to Dismiss. Instead, on January 13, 2012,

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Plaintiff filed a Notice of Automatic Bankruptcy Stay, which stated that “[p]ursuant to federal statute,

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the above entitled proceedings is [sic] stayed until such time as the stay is lifted by the federal court as

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to Bankruptcy proceedings which has commenced in NDCA No. 11-14455.” Dkt. No. 35. According

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to Bankruptcy Court records, Plaintiff filed a Chapter 7 Voluntary Petition approximately one month

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earlier, on December 12, 2011.

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Following reassignment of this case to this Court, Defendants filed a Re-Notice of their

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Motion to Dismiss and rescheduled the hearing for February 14, 2012. Dkt. No. 37. Defendants also

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provided a brief argument regarding why the automatic stay pursuant to 11 U.S.C. § 362 does not

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apply to this action.

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Defendants have not provided, nor has the Court found, adequate authority to support the

the Court directs Defendants to seek relief from the stay from the Bankruptcy Court. The potential

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exists that any damages that may be awarded to Plaintiff in this action may be considered property of

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the bankruptcy estate. Turner v. Cook, 362 F.3d 1219, 1225–26 (9th Cir. 2004) (“[w]hen [debtor]

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Northern District of California

argument that Defendants should not be required to seek relief from the automatic stay. Accordingly,

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United States District Court

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declared bankruptcy, all the ‘legal or equitable interests’ he had in his property became the property of

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the bankruptcy estate and are represented by the bankruptcy trustee,” including causes of action)

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(citing 11 U.S.C. § 541(a)(1)).

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Until Defendants have received affirmative relief from the automatic stay from the Bankruptcy

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Court, this action is STAYED. The motion set for February 14, 2012 is VACATED and may be re-

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noticed by Defendants when relief from the stay is granted or Plaintiff’s bankruptcy proceedings have

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concluded.

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The parties shall submit updates to the Court every 120 days to inform the Court of the status

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of the bankruptcy proceedings.

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IT IS SO ORDERED.

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Dated: February 8, 2012

________________________________________

YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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