Zambrano v. Dom & Dom Pizza, Inc. et al

Filing 66

ORDER staying case as to corporate defendant Dom & Dom Pizza, Inc. only pursuant to 65 Suggestion of Bankruptcy filed by Dom & Dom Pizza, Inc. Signed by Magistrate Judge John J. O'Sullivan on 4/16/2012. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-20207-CIV-O’SULLIVAN
[CONSENT]
ALIRIO ANTONIO ZAMBRANO,
Plaintiff
v.
DOM & DOM PIZZA INC., d/b/a GINO’S PIZZA
and GIANCARLO MONTOYA,
Defendants.
________________________________/
ORDER
THIS MATTER came before the Court on the Suggestion of Bankruptcy (DE #
65, 4/16/12) filed by the defendants.1
The corporate defendant, Dom & Dom Pizza, Inc., filed a voluntary petition for
bankruptcy in the Southern District of Florida. Id. By operation of Title 11 United States
Code Section 362, the above-styled action is STAYED as to the corporate defendant,
Dom & Dom Pizza, Inc.
Title 11 United States Code Section 362 stipulates that an automatic stay is
created upon the filing of any bankruptcy petition. See Ellison v. Northwest Eng’g Co.,
707 F.2d 1310, 1311 (11th Cir. 1983). The purpose of the stay is “to give the debtor a
breathing spell from his creditors.” Id.
Accordingly, after careful review of the record, and the Court being otherwise
1

Although the suggestion of bankruptcy was filed by both defendants there is no
indication in the suggestion of bankruptcy that the individual defendant also filed a
petition for bankruptcy.

fully advised, it is
ORDERED AND ADJUDGED, that this case is STAYED as to the corporate
defendant, Dom & Dom Pizza, Inc. It is further
ORDERED AND ADJUDGED that the case remains open as to the individual
defendant, Giancarlo Montoya, because the protection of the automatic stay does not
apply to co-defendants who are not in bankruptcy. See In re Sunbeam Securities
Litigation, 261 B.R. 534, 536 (S.D. Fla. 2001) (noting that “[t]he law makes clear . . .
that the automatic stay provisions . . . generally are not available to third-party non
debtors”); Dewitt v. Daley, 336 B.R. 552, 556 (S.D. Fla. 2006)(noting that “the case law
is clear that extending a stay to non-bankrupt co-defendants is done rarely, justified
only in ‘unusual circumstances’”).
DONE AND ORDERED, in Chambers, in Miami, Florida, this 16th day of April,
2012.
________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
All counsel of record