Presswood v. Pernix Therapeutics Holdings et al

Filing 73

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Motion to Stay Case including Briefing on Defendants Supplemental Motion to Dismiss Plaintiffs Second Amended Complaint, pending Disposition of the Bankruptcy Court Objection is DENIED. [Doc. 70 . ] IT IS FURTHER ORDERED that Plaintiff shall file its response to Defendants Supplemental Motion to Dismiss Plaintiffs Second Amended Complaint no later than November 1, 2016. [Doc. 67 .] IT IS FURTHER ORDERED that Defendants may file a Reply Brie f in Support of their Supplemental Motion to Dismiss Plaintiffs Second Amended Complaint no later than November 3, 2016. IT IS FURTHER ORDERED that the parties shall appear in person for oral argument regarding Defendants Motion to Dismiss for Lac k of Jurisdiction [Doc. 29 ] and Supplemental Motion to Dismiss Plaintiffs Second Amended Complaint [Doc. 67 .] on Monday, November 7, 2016 at 3:00 p.m. in Courtroom 13- North of the Thomas F. Eagleton Courthouse in St. Louis, Missouri. ( Motion Hearing set for 11/7/2016 03:00 PM before Magistrate Judge Nannette A. Baker.). Signed by Magistrate Judge Nannette A. Baker on 10/25/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ALAN PRESSWOOD, D.C., P.C.,
individually and on behalf of all others
similarly situated,

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)
)
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Plaintiff,
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v.
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PERNIX THERAPEUTICS HOLDINGS, et al., )
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Defendants.
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Case No. 4:15-CV-592 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Alan Presswood, D.C., P.C.,’s Motion to Stay
Case including Briefing on Defendants’ Supplemental Motion to Dismiss Plaintiff’s Second
Amended Complaint pending Disposition of the Bankruptcy Court Objection.

[Doc. 70.]

Defendants filed a Memorandum of Law in Opposition to Plaintiff’s Motion to Stay. [Doc. 72.]
On July 23, 2015, this Court stayed its ruling on Defendants’ Motion to Dismiss
Plaintiff’s Second Amended Complaint until the U.S. Bankruptcy Court for the Southern District
of Illinois issued a ruling regarding whether the claim brought in this action was a part of the
bankruptcy estate of individual Dr. Alan Presswood. On September 15, 2016, the bankruptcy
court ruled that at the time that this action was filed, the claim belonged to the Trustee and not
Dr. Alan Presswood. The bankruptcy court, however, found that the claim could be exempted
under bankruptcy law and excluded it from the bankruptcy estate.

After that ruling, Dr.

Presswood has started additional litigation in the bankruptcy court seeking a court order that the
Trustee abandon the claim. In this court, Plaintiff Alan Presswood, D.C., P.C., seeks leave to

stay this case until the proceedings regarding abandonment of the claim are completed in
bankruptcy court. Defendants oppose the motion as a fruitless effort that will prejudice the
Defendants.
“[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248, 254 (1936). “In
considering a motion to stay, a court should consider both the interest of judicial economy and
the potential prejudice or hardship to the parties.” Asarco, LLC v. NL Industries, Inc., No. 4:11CV-864 JAR, 2013 WL 943614 at *3 (E.D. Mo. 11, 2013). Based on the foregoing, the Court
will deny Plaintiff’s Motion to Stay. First, Dr. Presswood is not currently the Plaintiff in this
action. Although Plaintiff intends to file another motion to amend its complaint substituting Dr.
Presswood for the current Plaintiff, it is questionable that Dr. Presswood has standing to pursue
this claim. Second, Plaintiff has not sufficiently supported its claim that staying this particular
action supports judicial economy and would not prejudice the Defendants.
Accordingly,
IT IS HEREBY ORDERED that Motion to Stay Case including Briefing on
Defendant’s Supplemental Motion to Dismiss Plaintiff’s Second Amended Complaint, pending
Disposition of the Bankruptcy Court Objection is DENIED. [Doc. 70.]
IT IS FURTHER ORDERED that Plaintiff shall file its response to Defendant’s
Supplemental Motion to Dismiss Plaintiff’s Second Amended Complaint no later than
November 1, 2016. [Doc. 67.]

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IT IS FURTHER ORDERED that Defendants may file a Reply Brief in Support of their
Supplemental Motion to Dismiss Plaintiff’s Second Amended Complaint no later than
November 3, 2016.
IT IS FURTHER ORDERED that the parties shall appear in person for oral argument
regarding Defendants’ Motion to Dismiss for Lack of Jurisdiction [Doc. 29.] and Supplemental
Motion to Dismiss Plaintiff’s Second Amended Complaint [Doc. 67.] on Monday, November 7,
2016 at 3:00 p.m. in Courtroom 13-North of the Thomas F. Eagleton Courthouse in St. Louis,
Missouri.
Dated this 25th day of October, 2016.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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