Acuity, A Mutual Insurance Company v. Gonzalez et al

Filing 20

ORDER - IT IS ORDERED: This case is referred to the United States Bankruptcy Court for the District of Nebraska. The Clerk of the United States District Court for the District of Nebraska shall close this case for statistical purposes. The Clerk of the United States District Court for the District of Nebraska shall deliver, or send electronically, the Court file to the Clerk of the Bankruptcy Court for the District of Nebraska. Ordered by Judge John M. Gerrard. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ACUITY, A MUTUAL INSURANCE
COMPANY,
4:15-CV-3029
Plaintiff,
vs.

ORDER

JUAN C. GONZALEZ d/b/a UNITED
DRYWALL; JUAN C. GONZALEZ,
INDIVIDUALLY; and UNITED
DRYWALL, INC.;
Defendants.
This matter is before the Court on its own motion in response to
defendant Juan C. Gonzalez's suggestion of bankruptcy (filing 18). This
Court's local rules provide:
Upon the filing of a suggestion in bankruptcy, or other
notification that a party to a civil case is a debtor in a bankruptcy
case, the court issues an order staying further proceedings in the
case as to the party in bankruptcy. The case may proceed as to
any parties not in bankruptcy. If any party files a motion
requesting referral of the case to the bankruptcy court, the case is
referred to the bankruptcy court for further action.
NEGenR 1.5(a)(1).
But in this case, the Court is not clear about who is, and is not, a "party
in bankruptcy." The operative complaint in this case asserts claims against
three defendants: Juan C. Gonzalez as an individual, Juan C. Gonzalez d/b/a
United Drywall, and United Drywall, Inc. Filing 1. And the defendant's
bankruptcy petition (No. 15-41046-TLS filing 1) shows Juan Carlos Gonzalez
to be the debtor, but under "Other Names," sets forth "DBA United Drywall,
Inc." and "DBA United Drywall."
It is clear that under Nebraska law, doing business under another
name or several names does not create an entity separate and distinct from
the person operating the business. Hall v. Auto-Owners Ins. Co., 658 N.W.2d
711, 716 (Neb. 2003). A corporation is obviously a different matter, but it

appears from the complaint that United Drywall, Inc. was only incorporated
after the policy of insurance at issue in this case was purchased and renewed.
Filing 1 at 2. The plaintiff alleges that United Drywall, Inc. is subject to
successor liability. But whatever the merit of that theory, the immediate
difficulty for the Court is that it is not clear what the appropriate scope of the
automatic bankruptcy stay should be, given the elision of the parties and the
derivative nature of United Drywall, Inc.'s potential liability.
The Court concludes that under these circumstances, the bankruptcy
court is better suited to consider the scope of the bankruptcy stay, and in
which court (if any) this action should proceed as to United Drywall, Inc. If
relief from the bankruptcy stay is available, as to any party, then that
determination should be made by the bankruptcy court in the first instance.
And, of course, the bankruptcy court may recommend withdrawal of the
reference, in whole or in part, should it find that proceeding in this Court
would be more appropriate.
IT IS ORDERED:
1.

This case is referred to the United States Bankruptcy
Court for the District of Nebraska.

2.

The Clerk of the United States District Court for the
District of Nebraska shall close this case for statistical
purposes.

3.

The Clerk of the United States District Court for the
District of Nebraska shall deliver, or send electronically,
the Court file to the Clerk of the Bankruptcy Court for the
District of Nebraska.

Dated this 21st day of July, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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