Lemaster v. Collins Industries, Inc. et al

Filing 116

MEMORANDUM AND ORDER denying 76 Motion to Stay Case; granting 84 Motion to Amend Scheduling Order ; finding as moot 101 Motion for Leave to File Surreply; granting 112 Supplemental Motion to Amend Scheduling Order. Signed by Magistrate Judge Kenneth G. Gale on 7/10/2012. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERRY LEMASTER.

)
)
Plaintiff,
)
)
v.
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COLLINS BUS CORPORATION, )
)
Defendant.
)
_____________________________ )

Case No. 11-cv-2128 JTM/KGG

ORDER ON MOTION TO STAY ALL PROCEEDINGS AND
MOTION TO AMEND SCHEDULING ORDER
Plaintiff has filed a Motion to Stay Case (Doc. 76), a Motion to Amend
Scheduling Order (Doc. 84), and a Supplemental Motion to Amend Scheduling
Order (Doc. 112). Defendant opposes the motions. The motions arise primarily
from a development that occurred during Plaintiff’s deposition. During the
deposition, it is was discovered that Plaintiff had been a debtor in a bankruptcy
proceeding. It was also discovered, at least by Defendant and Plaintiff’s counsel,
that the claim in this action was not listed as an asset.
On June 26, 2012, the United States Bankruptcy Court for the Eastern
District of Virginia reopened the bankruptcy case. Plaintiff’s counsel now awaits
news of whether the newly appointed Trustee will pursue the present action, and

whether he will do so with or without Plaintiff’s present counsel. Plaintiff also
contends that an extension of time, particularly the expert deadlines, is needed
because of a delay in obtaining certain physical evidence. Defendant opposes the
motions.
The reopening of the bankruptcy case, and the need for the new Trustee to
decide whether and how to proceed with this claim, creates administrative issues
justifying a short pause and resetting of some of the case deadlines. However, the
Court sees no reason to order the case stayed. Plaintiff should work with the
Trustee to ensure that the transition, if any, occurs as promptly as possible. The
motion for stay is DENIED. However, the motion to amend the scheduling order
and the supplemental motion to amend the scheduling order are GRANTED as to
scheduling deadlines which had not passed at the time Plaintiff filed its motion to
amended the scheduling order on May 31, 2012. The Court will set a telephone
conference with the parties to devise a Revised Scheduling Order re-setting those
deadlines, which are suspended pending that order.
This Order does not effect deadlines which had passed by May 31, 2012, and
does not effect deadlines relating to the pending Motion for Summary Judgment
(Doc. 72). This order does not stay discovery, and does not stay any pending
discovery response times. Defendant’s Motion for Leave to File Sur-Reply (Doc.
101) is denied as moot.

IT IS SO ORDERED.
Dated this 10th day of July, 2012.

S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge