Compton et al v. Home Depot U.S.A., Inc.

Filing 31

MEMORANDUM AND ORDER denying without prejudice 21 Motion to Withdraw as Attorney; denying 25 Motion to Stay Case and Motion to Stay Deadlines ; granting 29 Motion for Extension of Time to File. Status Conference set for 8/2/2018 at 01:15 PM by Telephone GLR - CONFERENCE LINE 1-888-363-4749 ACCESS CODE 8533057 before Magistrate Judge Gerald L. Rushfelt. Signed by Magistrate Judge Gerald L. Rushfelt on 6/13/2018. (ydm) Modified on 6/14/2018 to change the date of status conference. (ydm).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MATT COMPTON, et al.,
Plaintiffs,
v.

Case No. 17-2283-GLR

HOME DEPOT U.S.A. INC.,
Defendant.

MEMORANDUM AND ORDER
Before the Court are three motions: Motion to Withdraw as counsel for Plaintiffs Matt
and Shawna Compton, filed by Plaintiffs’ attorney of record, Troy Unruh (ECF 21); Plaintiffs’
Motion to Stay Case and Deadlines (ECF 25); and Defendant’s Motion for Extension of
Discovery Deadlines and Trial Date (ECF 29). All three motions stem from Plaintiffs’ filing of
bankruptcy. For the reasons set forth below, the Motion to Withdraw is denied without prejudice,
the Motion to Stay Case and Deadlines is denied, and the Motion for Extension of Discovery
Deadlines and Trial Date is granted.
I.

Motion to Withdraw

“The withdrawal of appearance by an attorney is governed by D. Kan. Rule 83.5.5, which
requires that a court authorize withdrawal if the client will be left without representation.”1 The
rule specifies that an attorney seeking withdrawal must file a motion to withdraw that: (1) sets
forth the reasons for the withdrawal; (2) advises the client that he or she is personally responsible
for complying with court orders and procedural time lines; (3) advises the client of impending

1

Reynolds v. U.S., No. 14-2009-DDC-TJJ, 2014 WL 5025959, at *1 (D. Kan. Oct. 8, 2014).

deadlines; and (4) provides the Court with current contact information for the client.2 The motion
must be served on the client either by personal service or by certified mail, with return receipt
requested.3 The withdrawing attorney must also file proof of personal service of the motion to
withdraw, or the certified mail receipt, signed by the client, or an affidavit indicating the client
received a copy of the motion to withdraw.4
The Motion to Withdraw filed by counsel for Plaintiffs fails to comply with D. Kan. Rule
83.5.5. There is no indication that Plaintiffs have other counsel representing them in the present
action. Mr. Unruh is the only attorney who has entered an appearance on their behalf. Although
the motion says Plaintiffs have filed for bankruptcy and “intend to pursue this claim through that
court with different counsel,” no other attorney has entered an appearance on their behalf in this
case. Nor does the Court find any indication that the trustee in bankruptcy indeed intends to enter
an appearance as a substitute for Plaintiffs and pursue this case further. Because there is no
showing that Plaintiffs in fact have other counsel who will represent them in this case, D. Kan.
Rule 83.5.5(a) applies.
The motion sets forth Plaintiffs’ bankruptcy filing as the reason for the proposed
withdrawal. But it does not include any evidence that counsel advised Plaintiffs that they are
personally responsible for complying with court orders or deadlines. Nor does it refer to any
evidence that counsel has informed Plaintiffs of impending deadlines. It also fails to include any
current contact information for Plaintiffs. Of further importance, it includes no proof of personal
service, a signed certified mail receipt, or an affidavit to show that Plaintiffs have received a
copy of the motion. “This requirement is more than a formality; it is a means for the Court to

2

D. Kan. Rule 83.5.5(a)(1).

3

D. Kan. Rule 83.5.5(a)(2).

4

D. Kan. Rule 83.5.5(a)(4).

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ensure that a party will not unknowingly be left in a civil lawsuit without representation.”5 The
Court knows of no rule that authorizes counsel to simply file a paper to announce his withdrawal
and thus abandon his clients upon a supposition that someone else, e.g. a trustee in bankruptcy,
will fulfill his responsibilities to the Court, to his clients, and to opposing counsel.
Because the Motion to Withdraw fails to comply with D. Kan. Rule 83.5.5, the Court
denies it without prejudice to a motion that fully complies with the requirements of the rules.
II.

Motion to Stay Case and Deadlines

Without any cited authority, Plaintiffs’ Motion to Stay Case and Deadlines says that
“Plaintiffs have filed for Bankruptcy; as such an automatic stay should have been entered.” It
further refers to the Motion to Withdraw. But it provides no authority or reasoning for the
requested stay.
The Bankruptcy Code includes a provision for an automatic stay of a judicial action once
an action has been filed in bankruptcy court.6 Specifically, it says a petition filed pursuant to the
Bankruptcy Code operates as a stay of the continuation of a judicial action or proceeding
“against the debtor” that was commenced before “the commencement of the case under this
title . . . .”7
A bankruptcy court’s decision as to an automatic stay is not controlled by the prior order
of a state court.8 However, the motion does not suggest that either party has sought an automatic

5

Reynolds v. U.S., No. 14-2009-DDC-TJJ, 2014 WL 5025959, at *2 (D. Kan. Oct. 8, 2014).

6

See generally 11 U.S.C. § 362.

7

11 U.S.C. § 362(a)(1).

8

YRC, Inc. v. Motorcar Parts of Am., Inc., No. 14-2067-JTM, 2014 WL 2898052, at *1 (D. Kan. June 26, 2014).
See also J.E. Robert Co. v. Signature Properties, LLC, No. X04HHDCV075026084S, 2011 WL 590350, at *2
(Conn. Super. Ct. Jan. 13, 2011) (finding the bankruptcy court, rather than the state court, must extend the automatic
stay to non-debtor defendants); In re Raboin, 135 B.R. 682, 684 (D. Kan. 1991) (finding the bankruptcy court “has
exclusive jurisdiction to determine the extent and effect of the stay, and the state court’s ruling to the contrary does
not bar the debtor’s present motion.”).

3

stay through the bankruptcy court. Further, district courts retain jurisdiction to determine whether
the stay applies to litigation pending before them.9 The Court is therefore prepared to rule on
Plaintiffs’ motion.
As a preliminary matter, it appears to the Court that Plaintiffs may not have standing to
request a stay, if they are no longer the real party or parties in interest. “When a plaintiff to an
action files bankruptcy, the cause of action becomes the property of the bankruptcy estate and the
bankruptcy trustee becomes the real party in interest with authority to pursue the claim.”10
Plaintiffs filed this motion almost a month after they filed their bankruptcy action.11 Defendant’s
motion for extension indicates this lawsuit has been listed as an asset of the bankruptcy estate.12
Thus it appears Plaintiffs may no longer be the real parties in interest and no longer have
authority to pursue their claim. Rather, the bankruptcy trustee would become the real party in
interest. But as noted previously, no bankruptcy trustee has requested to enter appearance in
place of Plaintiffs.
However, even if Plaintiffs do have standing, they have failed to provide the Court with
any authority to support entry of a stay. Importantly, the automatic stay applies to a judicial
action against the debtor.13 But here it is the Plaintiffs who have filed the bankruptcy petition
and are also pursuing this action before this Court. Consequently, this case is an action by the
debtor, and not against the debtor. In general, “the filing of a bankruptcy petition does not stay

9

E3 Biofuels Mead, LLC v. QA3 Fin. Corp., 384 B.R. 580, 581 (D. Kan. 2008) (citations omitted).

10

Wilkerson v. Schirmer Engineering Corp., No. 04-cv-00258-WDM-MEH, 2009 WL 211488, at *2 (D. Colo. Jan.
28, 2009) (citing Sender v. Simon, 84 F.3d 1299, 1304–05 (10th Cir. 1996)); see also 11 U.S.C. § 541.
11

Compare ECF 25 (filed on April 19, 2018), with ECF 26 (stating the bankruptcy case was filed on March 26,
2018).
12

ECF 29 at 1–2.

13

11 U.S.C. § 362(a)(1).

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actions against nondebtors.”14 The plain language of the statute suggests “the Code’s automatic
stay does not apply to judicial proceedings, such as this suit, that were initiated by the debtor.”15
The Bankruptcy Code “distinguishes actions against the debtor from actions by the debtor
because actions by the debtor usually produce recovery for the estate (or leave its value
unaffected).”16 The automatic stay is essential to preventing creditors “from stealing a march on
each other.”17 However, there is “no policy of preventing persons whom the bankrupt has sued
from protecting their legal rights.”18
Plaintiffs have failed to provide any authority to support their request that the present
action be stayed because of their bankruptcy filing. The automatic stay provision provided in 11
U.S.C. § 362 does not apply, because it is an action initiated by the debtors, not an action against
them. Therefore, the Motion to Stay Case and Deadlines is denied.
III.

Motion for Extension of Discovery Deadlines and Trial Date

Finally, the Court considers Defendant’s Motion for Extension of Discovery Deadlines
and Trial Date. Defendant says many of the dates in the Scheduling Order have been “continued
by agreement of the parties due to the plaintiffs’ imminent bankruptcy filing.” Plaintiffs are in
agreement that the dates be extended, according to the motion.
Although the Court is denying the Motion to Withdraw and the Motion to Stay Case and
Deadlines, which both serve as the basis for the motion for extension, the Court grants the

14

Krondes v. O’Boy, 796 A.2d 625, 630 (Conn. App. Ct. 2002) (citations omitted).

15

Brown v. Armstrong, 949 F.2d 1007, 1009–10 (8th Cir. 1991) (emphasis added) (citations omitted); see also
Merchants & Farmers Bank v. Hill, 122 B.R. 539, 541 (E.D. Ark. 1990).
16

In the Matter of Mahurkar Double Lumen Hemodialysis Catheter Patent Litigation, 140 B.R. 969, 976 (N.D. Ill.
1992).
17

Martin-Trigona v. Champion Fed. Sav. & Loan Ass’n, 892 F.2d 575, 577 (7th Cir. 1989).

18

Id.

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motion for extension for good cause. Defendant has a clear interest in protecting and defending
its interests in the present action. The deadlines set forth in the Scheduling Order (ECF 13) will
be extended for 60 days. The Court sets a telephone status conference on August 2, 2018 at 1:15
p.m. to discuss the status of the case and reset deadlines further as needed. The parties should
call 1-888-363-4749, access number 8533057, for the conference.
IT IS THEREFORE ORDERED BY THE COURT that the Motion to Withdraw filed
by Plaintiffs’ counsel (ECF 21) is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Stay Case and Deadlines (ECF
25) is denied.
IT IS FURTHER ORDERED that Defendant’s Motion for Extension of Discovery
Deadlines and Trial Date (ECF 29) is granted, and a telephone status conference is set on
August 2, 2018 at 1:15 p.m. The parties should call 1-888-363-4749, access number 8533057,
for the conference.
IT IS SO ORDERED.
Dated June 13, 2018, at Kansas City, Kansas.
S/ Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge

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