Brown v. Pontus LLC et al

Filing 20

ORDER granting 19 Motion to lift Stay. Signed by Magistrate Judge G. R. Smith on 5/25/18. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DIXIE BROWN,

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Plaintiff,
v.
PONTUS, LLC, et al.,
Defendant.

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CV417-202

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ORDER
Plaintiff Dixie Brown has moved to lift the stay on this case to
allow her to conduct discovery before defendant Ivayalo Dimitrov’s likely
deportation. Doc. 19. Neither Pontus, LLC nor Dimitrov has responded
in opposition.

Ordinarily, such silence would indicate sufficient

acquiescence to grant the motion. See S.D. Ga. L. Civ. R. 7.5 (failure to
timely respond to a motion indicates no opposition).

However, the

question is complicated here by the connection between this case and
United Specialty Insurance Company’s declaratory judgment action
concerning its contractual duties to defendants. See United Specialty
Insurance Co. v. Pontus LLC, et al., CV418-022, doc. 1 (S.D. Ga. Jan. 22,
2018).
The stay in this case was imposed on United Specialty’s motion in

its declaratory judgment action, to avoid the cost of defense to United
Specialty in the event it was found to have no obligation to these
defendants. See doc. 18. The parties in that case have recently filed a
joint status report indicating that they expect to complete discovery in
July and for United Specialty to file a summary judgment motion “by the
end of this month.”1 CV418-022, doc. 20 (status report filed May 16,
2018).
Brown has supplied the factual and legal foundations that were
lacking in her original opposition to the stay in this case. See doc. 18 at 2
n. 1 (explaining that Brown’s assertion of prejudice resulting from stay
was merely hypothetical and not supported by authority). Dimitrov’s
criminal trial is imminent. Doc. 19 at 1. Brown also represents that
Dimitrov will be deported “following the criminal trial.” Id. Thus, the
circumstances have changed.

The fact that Dimitrov is a named

defendant in this case and is the “owner” of the entity defendant, see doc.

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The Court notes that Brown’s motion to lift the stay was filed five days before the
joint status report. However, there is no indication that Brown served a copy of her
motion on United Specialty or attempted to resolve the issue she raises here while
conferring on that report. Since Brown has provided no indication of whether United
Specialty is even aware that this motion has been filed, the Court is left to wonder
whether it might oppose, even if these defendants do not.
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9 at 2, ¶ 3 (admitting “that Defendant Dimitrov is the owner of
Defendant Pontus, LLC”), make his likely and impending deportation a
clear obstacle to Brown’s ability to prosecute this case.

Further,

assuming that United Specialty has sufficiently investigated its likely
obligations that it has concrete plans to move for summary judgment, it
seems that it will be in an adequate position to make a business decision
concerning its role in this case.
As this Court has explained, “‘[w]hen confronted with a motion to
stay, the district court must consider its own interests in an orderly
disposition of its caseload, and the parties’ competing interests in the two
actions.” Cason v. Anderson, 2015 WL 1802248 at * 1 (S.D. Ga. Apr. 20,
2015) (quoting Markel Int’l Ins. Co. v. O’Quinn, 566 F. Supp. 2d 1374,
1376 (S.D. Ga. 2008)). Lifting the stay will require United Specialty “to
make a choice inherent to its line of business: either (1) continue to
defend its insured under the reservation of rights it purports to have . . .
or (2) withdraw and risk that [these defendants’] counsel will not present
a vigorous defense on which it can rely . . . .”

Id. at * 2.

While

Dimitrov’s deportation was merely hypothetical, the balance of equities
warranted a stay. Now that it is undisputedly likely, that balance tips
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the other way.
Accordingly, the Court GRANTS Brown’s motion to lift the stay.
Doc. 19. The Clerk is also DIRECTED to provide electronic notice of
this Order to United Specialty’s counsel in the related case (CV418-022).
Such notice will allow United Specialty to reevaluate its position in light
of the changed circumstances in both cases.
SO ORDERED, this 25th day of May, 2018.

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