Allgaier v. Peterson et al

Filing 92

MEMORANDUM OPINION AND ORDER: Accordingly, the stay of this action is lifted.Second, the Court declines to dismiss the action under Rule 41(b). Plaintiff has provided good cause for his failure to pursue this case for several months. (See Doc. #88, Dec'l of Frank Allgaier). In addition, defendant Aberle has not been prejudiced by the delay. Moreover, he failed to oppose the instant motion. Under these circumstances, the Court finds the case has not been abandoned and dismissal under Rule 41(b) would be inappropriate. Finally, counsel for plaintiff and pro se defendant Aberle are directed to appear for an in-person status conference on September 14, 2017, at 2:15 p.m., at which time the Court expects to set a trial date and a schedule for pretrial submissions. Mr. Aberle is warned that if he fails to appear for the conference, appropriate sanctions may be imposed, including the entry of a default judgment. The Clerk is directed to (i) terminate the motion (Doc. #86); (ii) lift th e stay of this action; and (iii) mail a copy of this Order to pro se defendant Greg Aberle at the address that appears on the docket. The Court certifies pursuant to 28 U.S.C. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Vincent L. Briccetti on 8/10/2017) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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FRANK ALLGAIER,
:
Plaintiff,
:
:
v.
:
:
GREG PETERSON a/k/a GREG ABERLE
:
PETERSON a/k/a GREG ABERLE and
:
INVESTANSWERS.COM a/k/a INVEST
:
ANSWERS RFC a/k/a IA ADVISORS,
:
Defendants.
:
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MEMORANDUM OPINION
AND ORDER
13 CV 5112 (VB)

Briccetti, J.:
Plaintiff Frank Allgaier brings this diversity action against defendant Greg Peterson a/k/a
Greg Aberle Peterson a/k/a Greg Aberle (“Aberle”) and Aberle’s defunct investment advisory
company, Investanswers.com, asserting claims for breach of fiduciary duty, fraud, negligence,
breach of contract, unjust enrichment, and fiduciary defalcation.
Before the Court is plaintiff’s unopposed motion for an Order (i) lifting the automatic
stay of this action that went into effect when Aberle filed for bankruptcy in February 2016;
(ii) finding plaintiff has not abandoned this case; and (iii) scheduling a pretrial conference and
trial date. (Doc. #86).
For the following reasons, plaintiff’s motion is GRANTED.
The Court has subject matter jurisdiction under 28 U.S.C. § 1332.
This case had been set for trial to begin on February 8, 2016. However, by letter dated
February 5, 2016, the Court was advised that Aberle filed a petition for relief under Chapter 7 of
the United States Bankruptcy Code in the United States Bankruptcy Court for the District of
Minnesota under Docket No. 16-30338. Accordingly, this action was automatically stayed
pursuant to 11 U.S.C. § 362(a), and the Court canceled the trial. (See Doc. #81).

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By Order dated October 6, 2016, the Court directed plaintiff’s counsel to provide an
update regarding the status of Aberle’s bankruptcy case. (Doc. #82). By letter dated October 20,
2016, plaintiff’s counsel informed the Court that Aberle had sought “to waive any discharge of
his debts in the bankruptcy proceedings” and that, on October 13, 2016, the Bankruptcy Court
accepted Mr. Aberle’s waiver of discharge. (Doc. #83). Plaintiff argued in his letter that the
Bankruptcy Court’s order had the effect of terminating the automatic stay.
By Memorandum Endorsement dated October 24, 2016, the Court instructed plaintiff’s
counsel that to the extent he sought to lift the stay of this action, he was required to file a formal
motion on notice to defendants. (Doc. #84).
Following the Court’s October 24, 2016, Order, neither party took any action in this case
for several months. Accordingly, by Order dated January 6, 2017, the Court ordered that the
case would be dismissed without prejudice under Rule 41(b) of the Federal Rules of Civil
Procedure, unless by January 20, 2017, plaintiff’s counsel showed cause in writing why the case
should not be deemed abandoned and dismissed for failure to prosecute. (Doc. #85).
Plaintiff filed the instant motion on January 18, 2017. (Doc. #86).
First, plaintiff argues the Bankruptcy Court’s October 13, 2016, order accepting Aberle’s
waiver of discharge (Pl.’s Br. Ex. C) had the effect of terminating the automatic stay. The Court
agrees. Section 362(c)(2)(C) of the Bankruptcy Code provides that in a case concerning an
individual brought under Chapter 7 of the Bankruptcy Code, the automatic stay continues until
“the time a discharge is granted or denied.” In this context, the “waiver of [a] right to a
discharge serve[s] as a denial of a discharge so as to terminate the automatic stay pursuant to 11
U.S.C. section 362(c)(2)(C).” Smith v. C. I. R., 96 T.C. 10, 15 (1991); see also In re Dunne,
2015 WL 7625609, at *5 (Bankr. D. Conn. Nov. 25, 2015) (“Since the Debtor waived his

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discharge, the automatic stay does not apply to him.”), appeal dismissed, 2017 WL 1164379 (2d
Cir. Mar. 28, 2017) (summary order). Accordingly, the stay of this action is lifted.
Second, the Court declines to dismiss the action under Rule 41(b). Plaintiff has provided
good cause for his failure to pursue this case for several months. (See Doc. #88, Dec’l of Frank
Allgaier). In addition, defendant Aberle has not been prejudiced by the delay. Moreover, he
failed to oppose the instant motion. Under these circumstances, the Court finds the case has not
been abandoned and dismissal under Rule 41(b) would be inappropriate.
Finally, counsel for plaintiff and pro se defendant Aberle are directed to appear for
an in-person status conference on September 14, 2017, at 2:15 p.m., at which time the
Court expects to set a trial date and a schedule for pretrial submissions. Mr. Aberle is
warned that if he fails to appear for the conference, appropriate sanctions may be imposed,
including the entry of a default judgment.
The Clerk is directed to (i) terminate the motion (Doc. #86); (ii) lift the stay of this
action; and (iii) mail a copy of this Order to pro se defendant Greg Aberle at the address that
appears on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962).
Dated: August 10, 2017
White Plains, NY

SO ORDERED:
____________________________
Vincent L. Briccetti
United States District Judge

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