Collette et al v. Wilde et al

Filing 38

MEMORANDUM DECISION AND ORDER RE: Plaintiffs' Motion to Lift Stay and Amend Complaint Concerning the Securities Claims Pending Against Defendant BevanWilde granting 37 Motion to Lift Stay and Amend Complaint Concerning the Securities Claims Pe nding Against Defendant Bevan Wilde. The stay should be lifted as to Plaintiffs securities claims against Defendant Wilde; however, the stay should remain in place with respect to Plaintiffs other causes of action against Defendant Wilde for breach o f contract, breach of fiduciary duty, fraud, conversion, and unjust enrichment. Plaintiffs are granted leave to file their Amended Complaint by 4/30/2012. Defendant Wilde shall have 21 days from the date of service of Plaintiffs Amended Complaint to either make a notice of appearance or file a written notice with the Court stating how and by whom he will be represented or risk entry of a default judgment onPlaintiffs securities claims against him. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

ROBERT COLLETTE, an individual, and R & L
COLLETTE LIMITED PARTNERSHIP, an Idaho
limited partnership,
Plaintiffs,
vs.
BEVAN WILDE, an individual, and
INTELLECTUAL CAPITAL INVESTMENTS
LLC, a Utah limited liability company,

Civil No. 4:09-cv-00041-EJL-REB
MEMORANDUM DECISION AND
ORDER RE: PLAINTIFFS’ MOTION
TO LIFT STAY AND AMEND
COMPLAINT CONCERNING THE
SECURITIES CLAIMS PENDING
AGAINST DEFENDANT BEVAN
WILDE
(Docket No. 37)

Defendants.

Currently pending before the Court is Plaintiffs’ February 21, 2012 Motion to Lift Stay
and Amend Complaint Concerning the Securities Claims Pending Against Defendant Bevan
Wilde (the “Motion”) (Docket No. 37). Defendant Bevan Wilde’s (“Defendant Wilde”)
response to the Motion was due on or before March 16, 2012. To date, Defendant Wilde has not
responded to the Motion. Therefore, having carefully reviewed the record and otherwise being
fully advised, the Court enters the following Memorandum Decision and Order:
I. DISCUSSION
On June 24, 2010, U.S. District Judge Edward J. Lodge stayed this action. See 6/24/10
Order (Docket No. 32) (“ . . . the instant case shall be automatically stayed pursuant to 11 U.S.C.
§ 362 until the stay is lifted by the Bankruptcy Court or other motion is granted allowing the case
to proceed without violating 11 U.S.C. § 362.”) (emphasis in original).

MEMORANDUM DECISION AND ORDER - 1

On July 27, 2011, the United States Bankruptcy Court for the District of Utah, Central
Division, entered an order granting Plaintiffs relief from the automatic stay to pursue their
federal and state securities claims against Defendant Wilde in this Court, stating:
Plaintiff/Creditor Collette is GRANTED relief from the automatic stay to pursue
certain claims against Defendant/debtor Wilde in a pending action in the United
States District Court for the District of Idaho, or such other court where such claims
will be litigated . . . .
See 7/27/11 Order, p. 2, (Docket No. 37, Att. 3).
Now, Plaintiffs seek an order (1) lifting the stay of their securities claims against
Defendant Wilde; (2) allowing Plaintiffs to file an Amended Complaint, identifying an additional
Plaintiff and adding federal securities claims which are the subject of the Bankruptcy Court
Complaint; and (3) requiring Defendant Wilde to either submit a notice of appearance or appoint
counsel by a date certain. See Pls.’ Mem. in Supp. of Mot., pp. 3-4 (Docket No. 37, Att. 1).
There being no opposition to Plaintiffs’ Motion, and otherwise finding good cause, the
Court is persuaded that the stay should be lifted as to Plaintiffs’ securities claims against
Defendant Wilde; however, the stay should remain in place with respect to Plaintiffs’ other
causes of action against Defendant Wilde for breach of contract, breach of fiduciary duty, fraud,
conversion, and unjust enrichment. Additionally, Plaintiffs are granted leave to file their
Amended Complaint (attached as Exhibit C in support of the Motion (Docket No. 37, Att. 4))
and shall do so on or before April 30, 2012. Finally, Defendant Wilde shall have twenty-one
(21) days from the date of service of Plaintiffs’ Amended Complaint to either make a notice of
appearance or file a written notice with the Court stating how and by whom he will be
represented.

MEMORANDUM DECISION AND ORDER - 2

II. ORDER
Based on the foregoing, IT IS HEREBY ORDERED THAT Plaintiffs’ unopposed
Motion to Lift Stay and Amend Complaint Concerning the Securities Claims Pending Against
Defendant Bevan Wilde (Docket No. 37) is GRANTED as follows:
1.

The stay should be lifted as to Plaintiffs’ securities claims against Defendant

Wilde; however, the stay should remain in place with respect to Plaintiffs’ other causes of action
against Defendant Wilde for breach of contract, breach of fiduciary duty, fraud, conversion, and
unjust enrichment.
2.

Plaintiffs are granted leave to file their Amended Complaint (attached as Exhibit

C in support of the Motion (Docket No. 37, Att. 4)) and shall do so on or before April 30, 2012.
Service shall be effectuated pursuant to the Federal Rules of Civil Procedure.
3.

Defendant Wilde shall have twenty-one (21) days from the date of service of

Plaintiffs’ Amended Complaint to either make a notice of appearance or file a written notice with
the Court stating how and by whom he will be represented or risk entry of a default judgment on
Plaintiffs’ securities claims against him. Absent such notice, Defendant Wilde risks the entry
of a default judgment on Plaintiffs’ securities claims against him.
DATED: April 23, 2012

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 3