Lustgraaf v. Behrens et al

Filing 387

ORDER granting the parties' (383) Motions for Leave in case 8:08-cv-00335-JMG-CRZ; (378) Motion for Leave in case 8:08-cv-00399-JMG-CRZ; granting (369) Motion for Leave in case 8:08-cv-00436-JMG-CRZ; granting (349) Motion for Leave in cas e 8:09-cv-00013-JMG-CRZ; granting (289) Motion for Leave in case 8:09-cv-00044-JMG-CRZ. The above captioned cases will not be referred to bankruptcy at this time. Member Cases: 8:08-cv-00335-JMG-CRZ, 8:08-cv-00399-JMG-CRZ, 8:08-cv-00436-JMG-CRZ, 8:09-cv-00013-JMG-CRZ, 8:09-cv-00044-JMG-CRZOrdered by Judge John M. Gerrard. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARLIN LUSTGRAAF,
8:08-CV-335
Plaintiff,
vs.
ORDER
SUNSET FINANCIAL SERVICES,
INC., and BRYAN S. BEHRENS,
Defendants.
JEAN (J.P.) POOLE & DEE POOLE,
TRUSTEES OF THE POOLE
FAMILY TRUST,

8:08-CV-399

Plaintiffs,
ORDER
vs.
SUNSET FINANCIAL SERVICES,
INC., and BRYAN S. BEHRENS,
Defendants.
BARBARA M. VACANTI,
PERSONAL REPRESENTATIVE OF
THE ESTATE OF MILO VACANTI,

8:08-CV-436

Plaintiff,
ORDER
vs.
SUNSET FINANCIAL SERVICES,
INC., and BRYAN S. BEHRENS,
Defendants.

WILLIAM GREEN AND JOANN
GREEN,
8:09-CV-13
Plaintiffs,
vs.
ORDER
SUNSET FINANCIAL SERVICES,
INC., and BRYAN S. BEHRENS,
Defendants.
BARBARA M. VACANTI,
PERSONAL REPRESENTATIVE OF
THE ESTATE OF MILO VACANTI,

8:09-CV-44

Plaintiff,
ORDER
vs.
SUNSET FINANCIAL SERVICES,
INC., and BRYAN S. BEHRENS,
Defendants.
This matter is before the Court on the motions for leave jointly filed by
the plaintiffs and defendant and third-party plaintiff Sunset Financial
Services requesting that the Court enter an order determining that they may
voluntarily dismiss their claims against defendant Bryan S. Behrens, and
that the case need not be referred to the bankruptcy court based on Behrens'
pending bankruptcy proceeding. Case no. 8:08-cv-335 filing 383; case no. 8:08cv-399 filing 378; case no. 8:08-cv-436 filing 369; case no. 8:09-cv-13 filing
349; case no. 8:09-cv-44 filing 289. The motions will be granted.
The Court agrees with the filing parties that they are not precluded by
the automatic bankruptcy stay from voluntarily dismissing their claims
against Behrens, as such a dismissal is not a "continuation" of a proceeding
against the debtor within the meaning of 11 U.S.C. § 362(a)(1). See Dennis v.
A.H. Robins Co., Inc., 860 F.2d 871, 872 (8th Cir. 1988); see also O'Donnell v.
Vencor Inc., 466 F.3d 1104, 1110-11 (9th Cir. 2006). In light of the parties'
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representation that the claims against Behrens are to be voluntarily
dismissed, the Court elects not to refer this matter to the bankruptcy court at
this time. The parties are advised, however, that for jurisdictional reasons,
Behrens should be dismissed as a party to each of the above-captioned cases
before the Court can act on the parties' other claims. The parties are invited
to do so as soon as is practicable.
IT IS ORDERED:
1.

The parties' motions for leave (case no. 8:08-cv-335 filing
383; case no. 8:08-cv-399 filing 378; case no. 8:08-cv-436
filing 369; case no. 8:09-cv-13 filing 349; case no. 8:09-cv-44
filing 289) are granted.

2.

The above-captioned cases
bankruptcy at this time.

will

not

be

referred

to

Dated this 11th day of June, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

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