Bank Of America, N.A. et al v. America's Imaging Center Incorporated et al
ORDER -- For the reasons set forth in the attached document, I find that this court retains jurisdiction to enter a final order appointing a receiver. I therefore direct the plaintiffs to promptly submit a proposed order consistent with the determinations and agreements made at the conference on January 14, 2013. SEE ATTACHED ORDER. Ordered by Magistrate Judge James Orenstein on 1/15/2013. (Rambaud, Dennis)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
BANK OF AMERICA, N.A., et al.,
- against AMERICA'S IMAGING
CENTER INCORPORATED, et al.,
JAMES ORENSTEIN, Magistrate Judge:
On November 15, 2012, I "so ordered" the following summary of the decisions made at a
conference earlier that day:
For the reasons set forth on the record, I granted the plaintiffs' request to appoint a
receiver and for related relief, see docket entry 28, provided, however, that by
November 26, 2012, the parties shall confer as to (a) a proposed receiver; (b) an
appropriate bond and undertaking; and (c) a carve-out with respect to Dr. Toobian's
personal expenses. To the extent the parties are unable to agree on some or all of
those matters, they shall jointly submit a report setting forth their competing
Docket Entry ("DE") 46 (the "Minute Order"); see also DE 57 (transcript of proceedings dated
November 15, 2012). Pursuant to that Minute Order, the parties have submitted their respective
positions on a number of issues as to which they could not agree, including a candidate for
appointment as receiver and the specific terms of the appointment order. In addition, non-party Dr.
Philip Baldeo has sought to be heard with respect to the terms of the anticipated appointment
order. See DE 48; DE 49; DE 50; DE 54; DE 55; DE 56.
In addition to contesting the terms of the anticipated appointment order, on December 14,
2012, the defendants filed a Notice of Appeal with respect to the Minute Order. DE 51. As a result,
I questioned whether this court retains jurisdiction to resolve the parties' disputes and issue a final
order appointing a receiver. See Order dated December 18, 2012; DE 59 (minute entry for
proceedings dated January 14, 2013). Upon further review of the relevant case law, I now conclude
that the pending Notice of Appeal did not divest this court of jurisdiction to issue such an order.
Although it is well-established that a notice of appeal divests a lower court of jurisdiction over
matters forming the basis for the appeal, "[i]t is equally established … that while an appeal of an
order or judgment is pending, the court retains jurisdiction to implement or enforce the order or
judgment." In re Prudential Lines, 170 B.R. 222, 243 (S.D.N.Y. 1994); see, e.g., C.H. Sanders Co.
v. BHAP Housing Devel. Fund Co., 750 F. Supp. 67, 69 (E.D.N.Y. 1990). "This is true because in
implementing an appealed order, the court does not disrupt the appellate process so long as its
decision remains intact for the appellate court to review." In re Prudential Lines, 170 B.R. at 243.
The subject of the pending Notice of Appeal is the determination, reflected in the Minute
Order, that the plaintiffs have demonstrated a sufficient basis for me to order the appointment of a
receiver. See DE 46. The remaining issues in dispute are matters of how best to implement that
determination. Issuing a final order appointing a receiver will not have an impact on the issues in
dispute on appeal; moreover, in light of the extent to which the parties reached agreement at the
conference on January 14, 2013, see DE 59, it is likely that the final order may not add much, if
anything, to the matters under review.
For the reasons set forth above, I find that this court retains jurisdiction to enter a final
order appointing a receiver. I therefore direct the plaintiffs to promptly submit a proposed order
consistent with the determinations and agreements made at the conference on January 14, 2013.
See DE 59.
Dated: Brooklyn, New York
January 15, 2013
U.S. Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?