Comerica Bank v. D'Beefs, LLC et al

Filing 20

ORDER denying without prejudice 18 Second Amended Motion for Default Judgment and Attorney Fees. The automatic stay is LIFTED as to Defendant Maurice Licardo. Comerica is DIRECTED to file supplemental briefing within 30 days of the filing date of this order. Signed by Senior Judge James C. Fox on 10/21/2015. Counsel is directed to read the order in its entirety for detailed information. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-00038-F
COMERICA BANK,
Plaintiff,
v.
D'BEEFS, LLC; 7 BY 34, LLC; ERICA
R. LICARDO; and MAURICE GRUNWITZ,
LICARDO,
Defendants.

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ORDER

This matter is before the court on Plaintiff Comerica Bank's ("Comerica") Second
Amended Motion for Default Judgment and Attorney's Fees [DE-18]. Comerica brings this
motion only as to Defendants D'Beefs, LLC, and 7 by 34, LLC, because of bankruptcy
proceedings initiated by the individual defendants. However, it appears to the court that the
automatic stay as to Maurice Grunwitz Licardo should be lifted due to his discharge under 11
U.S.C. § 727. See Discharge of Debtor, In re Licardo, No. 15-3222-5-DMW (Bankr. E.D.N.C.
September 23, 2015) (Docket Entry 14); see also 11 U.S.C. § 362 (c)(2)(C) ("[T]he stay of any
other action under subsection (a) of this section continues until the earliest of ... if the case is a
case ... under chapter [11] of this title, the time a discharged is granted or denied .... ").
Therefore, the automatic stay is LIFTED as to Defendant Maurice Licardo.
Additionally, an issue not addressed by Comerica's motion is whether allowing the
motion for default judgment is appropriate in light of the Fourth Circuit's interpretation of Frow
v. De La Vega, 82 U.S. (15 Wall.) 552, 21 L.Ed. 60 (1872), and the application ofRule 54 ofthe

Federal Rules of Civil Procedure. See, e.g., United States ex rel. Hudson v. Peerless Ins. Co., 374
F.2d 942, 945 (4th Cir. 1967). Accordingly, Comerica is DIRECTED to file supplemental
briefing within 30 days of the filing date of this order explaining why allowing the motion for
default judgment is appropriate in light ofthe Fourth Circuit's application of Frow.
Alternatively, if Plaintiff determines that the Fourth Circuit's interpretation of Frow should
preclude the entry of default judgment against the non-answering defendants, it should file a
notice so stating within 30 days.
For the foregoing reasons, Comerica's Second Amended Motion for Default Judgment
and Attorney's Fees [DE-18] is DENIED WITHOUT PREJUDICE.
SO ORDERED.
This, the~day of October, 2015.

enior United States District Judge

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