TRUSTED TRANSPORTATION SOLUTIONS, LLC. v. GUARANTEE INSURANCE COMPANY et al
Filing
83
MEMORANDUM OPINION AND ORDER: The request of B & B and Corbett to stay the case is DENIED; plaintiff shall promptly share with B & B and Corbett at its own expense copies of all relevant discovery not already in their possession; plaintiff's request for sanctions is DENIED. Signed by Magistrate Judge Joel Schneider on 5/11/2018. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
TRUSTED TRANSPORTATION
SOLUTIONS, LLC,
Plaintiff,
Civil No. 16-7094 (JS)
v.
GUARANTEE INSURANCE COMPANY,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the request to stay the
entire case filed by defendants Brown & Brown of New Jersey, LLC
and John F. Corbett. (Hereinafter collectively referred to as B
&
B
unless
briefing
otherwise
[Doc.
Nos.
noted.)
74,
75,
The
76,
Court
77,
argument via telephone conference call.
80,
received
81]
and
extensive
held
oral
For the reasons to be
discussed, B & B’s request to stay the case is DENIED. 1
Background
Plaintiff’s complaint was originally filed in New Jersey
State Court on September 15, 2016 and was removed to federal
court on February 13, 2016. The complaint named as defendants
Guarantee Insurance Company (“Guarantee”), Patriot Underwriters,
1
To the extent plaintiff argues Fed. R. Civ. P. 11 sanctions are
appropriate against B & B, the request is summarily denied. The
Court finds B & B had a good faith basis to request a stay in
view of the current procedural posture of the case.
1
Inc.
(“Patriot”)
collectively
and
Douglas
referred
to
as
Cook
(“Cook”).
“Insurer
(Hereinafter
Defendants”).
Cook
was
employed by Patriot and worked as its Marketing Representative.
Complaint ¶4. Plaintiff’s complaint alleges that in or about
March 2015, the Insurer Defendants offered it the opportunity to
participate
in
a
“Large
Deductible”
Worker’s
Compensation
Insurance Program. Id. ¶¶5-7. Plaintiff was allegedly told the
deductible
amount
for
the
program
was
$250,000,
a
Loss
Fund
would be set up with a contribution of $650,000, and that no
administrative fees would be taken out of the Loss Fund. Id.
¶¶8-11. The effective date of the Program was April 3, 2015. Id.
¶16. Plaintiff signed a Term Sheet and was told the premium
would be $303,228.00. Id. ¶¶17-18. Plaintiff claims the Insurer
Defendants made unauthorized deductions from the Loss Fund, its
premium payment was higher than represented, and some claims may
have been improperly paid. In addition, plaintiff claims it did
not execute or receive the Program Agreement that was referenced
in
the
Term
Sheet.
Plaintiff’s
six-count
complaint
asserts
claims under the Consumer Fraud Act, common law fraud, breach of
contract,
violation
of
the
covenant
of
good
faith
and
fair
dealing, breach of fiduciary duty and conversion. The Insurer
Defendants answered the complaint on October 19, 2016 [Doc. No.
5] and denied all liability allegations.
2
Plaintiff filed an amended complaint on May 8, 2017 [Doc.
No. 38] adding B & B and Corbett as defendants. Corbett was
employed by B & B. Plaintiff alleges B & B assisted plaintiff in
obtaining
worker’s
compensation
Plaintiff
alleges
B
reasonable
care
when
insurance
provided
and
by
they
&
B
and
they
failed
Guarantee
insurance.
obtained
to
and
Corbett
fully
Patriot.
Am.
failed
worker’s
investigate
Id.
Cpt.
¶¶84-85.
to
exercise
compensation
the
¶¶88-89.
proposal
Plaintiff
contends “[the] policy which was procured by B & B and Corbett
was materially deficient, void, and did not provide the terms
requested
by
plaintiff.”
Id.
¶90.
As
a
result,
plaintiff
contends it suffered and continues to suffer damages. Id. ¶91.
Plaintiff alleges B & B breached its fiduciary duty, breached a
special relationship and committed common law fraud. Plaintiff
clarified at oral argument it will claim the Insurer Defendants
sent the Program Agreement to Corbett who failed to give it to
plaintiff. If true, this is a critical fact in the case because
the Program Agreement apparently contains the payment terms by
which Patriot administered plaintiff’s insurance. Plaintiff is
challenging the terms in the Program Agreement on the ground it
did
not
sign
the
Agreement
when
it
agreed
to
its
insurance
program. Indeed, plaintiff alleges it did not even see a copy of
the Agreement. Plaintiff further clarified at oral argument it
will argue B & B misstated or misrepresented the premium it
3
would pay and B & B did not obtain the policy B & B told
plaintiff it would get.
The Insurer Defendants answered the amended complaint on
May 19, 2017 [Doc. No. 41] and asserted cross-claims for common
law contribution and indemnity. They also asserted contractual
indemnity claims against B & B and Corbett. B & B’s motion to
dismiss Counts 1 – 4 and 8 – 10 of plaintiff’s amended complaint
[Doc. No. 46] remain to be decided.
On
November
Florida
27,
Department
Guarantee
and
of
Insurance
Injunction
2017,
Notice
a
“Consent
Financial
Company
of
for
Automatic
Order
Appointing
the
Services
as
Receiver
Purposes
of
Liquidation,
Stay”
was
filed
in
of
the
Circuit Court of the Second Judicial Circuit, in and for Leon
County, Florida [Doc. No. 68]. Pursuant to paragraph 43 of the
Order, all judicial actions against Guarantee are stayed. 2 On
January 30, 2018, Patriot filed a Voluntary Petition for Chapter
11 Bankruptcy. [Doc. No. 77]. As a result of these developments,
the parties agree that at present plaintiff’s claims against all
defendants are stayed except for B & B. 3 Before B & B was named
2
To the extent the argument is made, the Court disagrees the
Order stays the case against Patriot or Cook. Paragraph 43
provides the stay provision applies to actions against “the
insurer or against its assets or any part thereof.” The insurer
is Guarantee, not Patriot or Cook.
3 Although Cook did not file for bankruptcy, the automatic stay
is still applicable to him. The Third Circuit has held the
automatic stay applies not only to debtor defendants, but to any
other defendants whose interests are such that a judgment
4
in the case the depositions of Cook, Patriot’s head of claims
(Hoen), and plaintiff’ principal (Davis) were taken. Corbett has
not been deposed.
B & B requests the entire case be stayed until the Insurer
Defendants
are
no
longer
liquidation
and
bankruptcy
subject
to
the
proceedings.
B
&
stay
B
in
argues
their
it
is
prejudiced unless the case is stayed because it “cannot depose
Defendants
Defendant
Patriot,
Cook,
Guarantee,
nor
can
it
or
call
their
them
employees,
to
testify
including
at
trial.”
December 20, 2017 Letter Brief (“LB”) at 2, Doc. No. 75. 4 The
root of B & B’s concern is that plaintiff’s claims against B & B
are
“inextricability
intertwined
with
[plaintiff’s]
claims
against the Insurer Defendants.” Id. B & B argues, therefore, it
“cannot adequately prepare a defense to Plaintiff’s claims or
the Insurer Defendants’ crossclaims without the participation of
the Insurer Defendants.” Id. at 4. B & B also argues it will
suffer
because
undue
it
burden
will
then
and
expense
have
to
if
the
participate
case
in
is
not
“three
stayed
or
more
against them will essentially result in a judgment or finding
against the debtor defendant. McCartney v. Integra Nat’l Bank
North, 106 F.3d 506, 510 (3d Cir. 1997). Since Cook was
Patriot’s marketing representative, a judgment against Cook will
essentially be a finding against Patriot.
4 According to B & B, it cannot conduct discovery because of the
automatic bankruptcy stay. Id. at 5. The Court is assuming B & B
is also arguing discovery directed to Guarantee is stayed
because of Florida’s November 27, 2017 Order.
5
separate and duplicative actions as a litigant or subpoenaed
third-party.” Id. at 3. 5
In sum, B & B argues the interests of fairness and justice
will
be
served
by
granting
a
stay,
plaintiff
will
not
be
prejudiced by a stay, B & B and third parties will be prejudiced
if the case is not stayed, staying the case will promote the
efficient use of judicial resources, and the public interest
will be served by staying the case.
Plaintiff
plaintiff’s
opposes
argument
B
is
&
that
B’s
stay
the
request.
claims
The
against
B
crux
&
B
of
and
Corbett are separate and independent from the claims against the
Insurer Defendants. Plaintiff argues the primary claim against B
& B is based on broker malpractice, breach of fiduciary duty,
breach
against
of
special
the
relationship
Insurer
Defendants
and
fraud,
arise
under
while
the
claims
the
New
Jersey
Consumer Fraud Act and breach of contract. Plaintiff argues,
therefore, B & B is not prejudiced because it can take relevant
discovery from the Insurer Defendants. In addition, plaintiff
argues the automatic bankruptcy stay does not apply to B & B.
Not surprisingly, plaintiff also argues it will be prejudiced by
a stay and B & B will not be prejudiced by a stay.
5
The three actions are: (1) plaintiff’s affirmative claims
against B & B, (2) plaintiff’s affirmative claims against the
Insurer Defendants, and (3) the Insurer Defendants’ crossclaims
against B & B and B & B’s crossclaims against the Insurer
Defendants.
6
Discussion
1.
The Automatic Bankruptcy Stay Does Not Apply to B & B
To the extent the argument is made, the Court finds the
automatic
bankruptcy
stay
“unusual
circumstances”
against
the
debtor
does
not
Section
and
may
apply
362(a)(1)
not
be
to
B
only
&
B.
stays
invoked
by
Absent
actions
solvent
codefendants, even if they are in a similar legal or factual
nexus with the debtor. Travelodge Hotels, Inc. v. Patel, C.A.
No. 13-03719 (WHW), 2013 WL 4537906, at *5 (D.N.J. Aug. 27,
2013) (citing McCartney v. Integra Nat. Bank N., 106 F.3d 506,
509-10 (3d Cir. 1997)); see also Maritime Elec. Co. v. United
Jersey
Bank,
959
F.2d
1194,
1205
(3d
Cir.
1991).
The
Third
Circuit has identified two “unusual circumstances” in which an
automatic stay may be extended to non-debtor parties: (1) where
the debtor is the real party in interest such that a judgment
against the third-party defendant will in effect be a judgment
or finding against the debtor and (2) where stay protection is
essential to the debtor’s reorganization efforts. McCartney, 106
F.3d at 510. These two recognized exceptions accomplish the same
goal as the automatic stay protecting the debtor during pendent
bankruptcy proceedings. Stanford v. Foamex L.P., C.A. No. 074225, 2009 WL 1033607, at *4 (E.D. Pa. Apr. 15, 2009) (“[T]he
‘unusual
the
circumstances’
debtor
during
the
exception
is
geared
pendency
of
the
7
toward
protecting
debtor's
bankruptcy
proceeding”)(emphasis in original). Absent unusual circumstances
“[m]ultiple
claim
and
multiple
party
litigation
must
be
disaggregated so that particular claims, counterclaims, crossclaims
and
third-party
claims
are
treated
independently
when
determining which of their respective proceedings are subject to
the bankruptcy stay.” Maritime Elec. Co., 959 F.2d at 1204-05.
“Unusual
circumstances”
do
not
exist
here
to
warrant
staying the case against B & B pursuant to Section 362 (a)(1). B
&
B
and
Patriot
are
separate
legal
entities
and
plaintiff
asserts separate theories of liability against them. Plaintiff’s
claims
against
B
claims
against
Patriot
contract.
insofar
Thus,
as
&
B
are
Patriot
plaintiff’s
are
is
grounded
in
malpractice
grounded
in
not
the
real
against
B
claim
fraud
B
is
in
the
breach
and
party
&
while
of
interest
concerned.
Further, as will be touched on infra, the Court rejects the
argument that plaintiff’s case against B & B will interfere with
the Insurer Defendants’ reorganization efforts.
2.
B & B’s Request for a Discretionary Stay is Denied
Although the Court holds that “unusual circumstances” do
not exist to warrant a stay pursuant to Section 362, that does
not end the Court’s analysis. Even if a stay is not required by
the bankruptcy statute, the Court still has discretion to stay
the case. See Clinton v. Jones, 520 U.S. 681, 706 (1997) (“The
District Court has broad discretion to stay proceedings as an
8
incident to its power to control its own docket.”) The court may
“hold one lawsuit in abeyance to abide the outcome of another
which
may
substantially
affect
it
or
be
dispositive
of
the
issues.” Akishev v. Kapustin, 23 F. Supp. 3d 440, 446 (D.N.J.
May
28,
2014)
(citations
omitted)
(quoting
Bechtel
Corp.
v.
Local 215, Laborers' Int'l Union, 544 F.2d 1207, 1215 (3d Cir.
1976)). The moving party bears the burden of demonstrating a
stay is warranted. Hertz Corp. v. Gator Corp., 250 F. Supp. 2d
421, 424–25 (D.N.J. 2003). In determining whether to grant a
stay courts consider a number of factors, including: (1) whether
a
stay
would
unduly
prejudice
or
present
a
clear
tactical
disadvantage to the non-moving party; (2) whether denial of the
stay would create a clear case of hardship or inequity for the
moving party; (3) whether a stay would simplify the issues and
the trial of the case; and (4) whether discovery is complete
and/or a trial date has been set. Akishev, 23 F. Supp. 3d at
446.
It is well settled a court has discretion to stay a case if
the interests of justice require. U.S. v. Kordel, 397 U.S. 1, 12
n.27
(1970).
However,
the
stay
of
a
civil
proceeding
is
an
extraordinary remedy. Walsh Sec., Inc. v. Cristo Prop. Mgmt.,
Ltd.,
7
whether
F.
to
Supp.
stay
2d
an
523,
action
526
the
(D.N.J.
court
1998).
must
When
“weigh
deciding
competing
interests and maintain an even balance.” Landis v. N. Am. Co.,
9
299 U.S. 248, 255 (1936). The court should consider whether the
stay
would
prejudice
the
non-moving
party
and
if
it
would
further the interest of judicial economy. See Ford Motor Credit
Co. v. Chiorazzo, 529 F. Supp. 2d 535, 542 (D.N.J. 2008)(denying
motion to stay, finding that plaintiff would be prejudiced); see
also
Gerald
Chamales
Corp.
v.
Oki
Data
Americas,
Inc.,
247
F.R.D. 453, 457 (D.N.J. 2007) (denying motion to stay discovery,
finding that non-moving party would be prejudiced). As noted,
the burden is on the party requesting the stay to “make out a
clear
case
forward[.]”
of
hardship
Landis,
299
or
inequity
U.S.
at
in
255.
being
The
required
moving
party
to
go
“must
state a clear countervailing interest to abridge a party’s right
to litigate.” CTF Hotel Holdings, Inc. v. Marriot Int’l, Inc.,
381 F.3d 131, 140 (3d Cir. 2004) (denying stay and finding no
hardship where moving party argued it would be forced to defend
itself twice).
After weighing the parties’ competing interests, the Court
finds the weight of the evidence falls in favor of denying B &
B’s request for a stay. With respect to the first factor to
consider, whether plaintiff will be prejudiced by a stay, the
Court
finds
a
stay
will
unduly
prejudice
and
disadvantage
plaintiff. If a stay is granted plaintiff’s efforts to promptly
and efficiently prosecute its case would be hampered. There is
no question that a stay would substantially delay plaintiff’s
10
efforts to “diligently proceed to sustain [its] claim.” Forrest
v. Corzine, 757 F. Supp. 2d 473, 479 (D.N.J. 2010) (citation
omitted). This prejudices plaintiff. Golden Quality Ice Cream
Co., Inc. v. Deerfield Specialty Papers, Inc., 87 F.R.D. at 53,
56 (E.D.Pa. 1980)(“Any plaintiff in the federal courts enjoys
the right to pursue his [or her] case and to vindicate his [or
her] claim expeditiously”); accord Gold v. Johns-Manville Corp.,
723 F.2d 1068, 1075-76 (3d Cir. 1983) (denying request for a
stay even though the main defendant filed for bankruptcy and
stating: “[i]n these cases, the clear damage to the plaintiffs
is the hardship of being forced to wait for an indefinite and,
if recent experience is any guide, a lengthy time before their
causes are heard”).
Plaintiff is prejudiced by a stay because any significant
delay in the case could hinder its ability to prove its case.
See
Clinton,
increase
the
520
danger
U.S.
of
at
707-08
prejudice
(“[D]elaying
resulting
from
trial
the
would
loss
of
evidence including the inability of witnesses to recall specific
facts, or the possible death of a party”); New York v. Hill, 528
U.S. 110, 117 (2000) (“Delay can lead to a less accurate outcome
as witnesses became unavailable and memories fade”); Worldcom
Techs., Inc. v. Intelnet Int’l, Inc., C.A. No. 00-2284, 2002 WL
1971256,
at
*6
(E.D.
Pa.
Aug.
22,
2002)
(“Motions
to
stay
discovery are not favored because when discovery is delayed or
11
prolonged it can create case management problems which impede
the
court’s
responsibility
unnecessary
litigation
to
expedite
expenses
discovery
and
and
cause
problems”)(citation
omitted); In re Health Mgmt., Inc., C.A. No. 96-0889 (ADS), 1999
WL 33594132, at *5 (E.D.N.Y. Sept. 15, 1999) (“The ability of
courts
justice
to
avoid
for
all
undue
delay
litigants
be
is
essential
neither
to
delayed
assur[e]
nor
that
impaired”)
(citation omitted). It is not insignificant that if B & B’s stay
request
is
granted
the
case
will
likely
be
stayed
for
an
indefinite period. Giving B & B the benefit of the doubt, a
reasonable estimate can probably be made as to when Patriot’s
bankruptcy will wind down. However, no reasonable prediction can
be made as to when Guarantee’s insolvency proceedings will be
completed. Plaintiff should not have to wait until an indefinite
time in the future to pursue a complaint it filed in September
2016.
The
addition,
case
the
has
already
been
inordinately
Court
rejects
B
B’s
&
argument
delayed.
that
In
since
plaintiff is only suing for money it will not be prejudiced by a
stay. There is no legal support for this argument. Thus, the
Court finds that the first relevant factor to consider when it
decides whether to stay the case weighs in favor of denying B &
B’s request for a stay.
With
respect
to
the
second
factor,
B
&
B
has
not
demonstrated that denying its request for a stay would create
12
“clear hardship” or “inequity” Landis, 299 U.S. at 255 (absent a
“clear case of hardship or inequality” a stay may not be issued
if there is “even a fair possibility” that a stay would work
damage on another party); Akishev, 23 F. Supp. 3d at 447 (citing
Actelion Pharm. Ltd. v. Apotex Inc., C.A. No. 12-5743 (NLH/AMD),
2013 WL 5524078, at *4 (D.N.J. Sept. 6, 2013)).
The crux of B & B’s argument is that it will be prejudiced
if the case progresses because the automatic stay applicable to
the
Insurer
discovery
it
Defendants
needs
makes
to
it
defend
“impossible”
the
case.
The
to
conduct
Court
is
the
not
convinced this is the case. First, B & B can, of course, direct
relevant discovery to plaintiff. Second, the Court recognizes
there is a split of authority as to whether discovery directed
to
the
bankrupt
Insurer
Defendants
is
barred
because
of
the
statutory bankruptcy stay. Compare plaintiff’s January 8, 2018
LB at 9-10, Doc. No. 76 and February 12, 2018 LB, Doc. No. 80,
with B & B’s February 12, 2018 LB at 2-8, Doc. No. 81. Third,
there
is
no
definitive
Third
Circuit
law
on
the
issue.
Therefore, it remains to be seen if a bankruptcy court will
grant B & B leave to take discovery from the Insurer Defendants. 6
The Court is not unsympathetic to B & B’s argument that if
it cannot re-depose Cook and other important representatives of
6
The same is true as to Guarantee. The parties do not presently
know if discovery directed to Guarantee is barred by Florida’s
November 27, 2017 Order.
13
Guarantee and Patriot, that it will be prejudiced. If in fact
this is the case, B & B can make another application to stay the
case. The Court deems it inappropriate to assume B & B will not
be able to take discovery from the Insurer Defendants in the
absence of definitive controlling case law on the issue and a
good faith attempt to take the discovery. 7 If B & B takes the
discovery it needs it will be able to present its defense at
trial. In that event if B & B wants to it can “point the
finger” at the Insurer Defendants. Despite the unfortunate
position
of
the
Insurer
Defendants,
if
B
&
B
gets
the
discovery it needs it will still have available to it all of
its
defenses.
B
&
B’s
defenses
have
not
been
waived
or
stayed. 8
B & B argues it is prejudiced if its stay request is denied
because of the burden and expense it will endure because of
“duplicative and overlapping cases on the same subject matter.”
December 20, 2017 LB at 3. However, the possibility of multiple
proceedings regarding a similar subject matter is not an unusual
occurrence. As noted, the Third Circuit has stated: "within a
7
B & B is concerned because it has allegedly been threatened
with a sanctions motion if it requests approval from the
bankruptcy court to depose the Insurer Defendants. In view of
the current state of the case law and this Order, the Court is
hard pressed to believe a viable sanctions motion can be filed.
8 As the party requesting discovery the Court expects B & B to
seek leave from the applicable bankruptcy or other court to take
discovery from Patriot, Cook and /or Guarantee. The Court
assumes B & B will take the necessary steps to assure it
complies with all applicable procedures and Court Orders.
14
single case, some actions may be stayed, others not. Multiple
claim and multiple party litigation must be disaggregated so
that particular claims, counterclaims, crossclaims and thirdparty claims are treated independently when determining which
of their respective proceedings are subject to the bankruptcy
stay." Maritime Elec. Co., 959 F. 2d at 1205; see also Lynch
v. Johns-Manville Sales Corp., 710 F.2d 1194, 1199 (6th Cir.
1983) ("[D]uplicative or multiple litigation which may occur
is
a
direct
duplication,
by-product
to
the
of
bankruptcy
extent
that
law.
it
As
may
such,
the
exist,
is
congressionally created and sanctioned").
The Court disagrees with B & B’s argument that plaintiff’s
liability claim against it is inextricably intertwined with the
Insurer Defendants, and it is unfair to consider its liability
in the absence of these defendants. The Court also disagrees
with B & B’s notion that it is “impossible to extricate” (see
February 12, 2018 LB at 7) the liability of B & B from the
Insurer
Defendants.
Instead,
the
Court
agrees
with
plaintiff
that there are separate and independent claims asserted against
B & B and Corbett that are not asserted against the Insurer
Defendants. It is, of course, true that there is an overlap of
relevant facts vis-à-vis the potential liability of the Insurer
Defendants and B & B. However, by no means is the liability of
the
parties
co-extensive.
The
15
factfinder
can
determine
one
defendant
is
liable
and
not
another.
This
is
true
because
plaintiff is not asserting vicarious liability theories against
B
&
B.
Instead,
plaintiff
is
asserting
that
B
&
B
is
independently liable for its losses. At this time, the Court is
not aware of any limitation on B & B’s ability to defend itself
with relevant evidence, witnesses and documents. This is true
even if the Insurer Defendants are not parties at trial. No
persuasive evidence presently exists to indicate that B & B is
prevented from presenting a fulsome defense at trial.
B & B overstates the alleged prejudice and burden to the
Insurer Defendants if the case is not stayed. In addition, no
persuasive evidence has been presented that the continuation of
this
lawsuit
reorganization
will
interfere
efforts.
This
with
is
the
true
Insurer
because
Defendants’
depositions
of
Patriot and Cook have already been taken, written discovery has
been answered, and relevant documents have been produced. If B &
B is permitted to direct discovery to the Insurer Defendants,
the Court does not expect the discovery to be burdensome or
extensive.
The third factor the Court considers when deciding whether
to grant a stay is whether a stay would simplify the issues and
trial of the case. The Court finds simplification will not occur
if a stay is imposed. Instead, by permitting plaintiff’s case to
proceed
just
against
B
&
B
and
16
Corbett,
the
case
will
be
immeasurably
simplified
compared
to
what
will
happen
if
plaintiff also proceeds against the Insurer Defendants. Given
the procedural developments in the case, it is now plain the
focus of plaintiff’s ire is on B & B and Corbett. Plaintiff is
contending that even though Corbett had a copy of the Program
Agreement,
alleges
B
he
did
&
B
not
and
give
plaintiff
Corbett
a
copy.
misrepresented
Plaintiff
material
also
facts
regarding their insurance coverage. Given the current posture of
the case, the factfinder will now be able to focus on these key
issues
rather
than
being
distracted
by
the
separate
and
independent allegations directed to the Insurer Defendants.
The
last
relevant
factor
the
Court
evaluates
to
decide
whether a stay is appropriate is whether discovery is complete
and/or
a
trial
date
has
been
set.
The
Court
considers
this
factor to be neutral. Although discovery is not complete, much
has been taken to date. As noted, if B & B takes additional
discovery
the
Court
does
not
expect
it
to
be
extensive
or
burdensome. In addition, although a trial date has not been set,
the Court expects the parties will shortly complete discovery so
that a trial date can be set in the not too distant future. 9
9
The Court does not agree with B & B that there is a material
public interest in staying the case. The Court also does not
agree the record in the case demonstrates that third parties
will be materially burdened and prejudiced if a stay is not
entered. This is pure conjecture. In addition, the Court rejects
the notion that the floodgates of litigation will be opened
against the Insurer Defendants if the Court does not Order a
17
Conclusion
After
weighing
the
evidence
and
equities,
and
after
evaluating the balance of hardships, the Court finds that the
scale weighs in plaintiff’s favor. For all the reasons discussed
herein, therefore, the Court will deny the request of B & B and
Corbett to stay the entire case.
O R D E R
Accordingly, it is hereby ORDERED this 11th day of May,
2018, that the request of B & B and Corbett to stay the case is
DENIED. The Court will shortly enter an Amended Scheduling Order
setting new deadlines to complete discovery; and it is further
ORDERED
that
to
the
extent
not
already
done,
plaintiff
shall promptly share with B & B and Corbett at its own expense
copies
of
all
relevant
discovery
not
already
in
their
possession; and it is further
ORDERED plaintiff’s request for sanctions is DENIED.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: May 11, 2018
stay. The Court is only addressing the present case
other litigation that may or may not be filed
Insurer Defendants. B & B has not brought to
attention any other request to take discovery from
Defendants.
18
and not any
against the
the Court’s
the Insurer
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