RDLG, LLC v. RPM Group, LLC et al

Filing 129

ORDER granting 121 Motion to Lift Stay and Reopen Case; counsel for both parties directed to confer and jointly submit report to this Court within 10 days setting forth whether parties desire a bench or jury trial, estimated trial length, and any dates counsel is unavailable for trial between now and 1/1/2015.. Signed by Magistrate Judge Dennis Howell on 8/13/14. (Pro se litigant served by US Mail.)(ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:10cv204
RDLG, LLC.,

)
)
Plaintiff,
)
)
v.
)
)
RPM GROUP, LLC, et al.,
)
)
Defendants.
)
___________________________________ )

ORDER

Pending before the Court is the Motion to Lift Stay [# 121]. Previously, the
Court directed the Clerk to enter default judgment against Defendant Fred M.
Leonard as a sanction for his continued disregard for this Court and its Orders.
(Order, Oct. 19, 2012.) The Court also stayed the case pending the termination of
the bankruptcy proceedings. (Id.) The Court directed the parties that either party
could move to lift the Court’s stay in these proceedings within thirty (30) days of
the termination of the bankruptcy proceedings. (Id.)
Although the bankruptcy proceedings are ongoing, on June 10, 2014, the
Bankruptcy Court entered an order finding that the Plaintiff was free to pursue its
fraud claim in this Court against Defendant Leonard. (Ex. D. to Pl.’s Mot. Lift
Stay.) Accordingly, on July 1, 2014, Plaintiff moved the Court to lift the stay and

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set this case for trial as to the issue of damages. In response, Defendant Leonard
contends that the motion was untimely because it was not brought within the thirty
day time period as directed by the Court.
Defendant Leonard’s argument is without merit, and appears to be nothing
more than another attempt by Defendant Leonard to delay these proceedings, waste
the Court’s resources, and further hinder the administration of justice. As a
threshold matter, the bankruptcy proceedings have not terminated, and are
ongoing. Plaintiff could have waited until the final termination of the bankruptcy
proceedings to move to lift the stay. The fact that the Bankruptcy Court found that
the automatic stay expired on an earlier date and that no injunction prevented
Plaintiff from pursuing its fraud claim in this Court is irrelevant. It is this Court’s
October 19, 2012, Order that governs the entry of the stay and the timing for lifting
the stay, and the language of the Court’s Order is clear and unambiguous.
Plaintiff’s motion is timely.
Because the Bankruptcy Court has determined that the fraud claim is no
longer subject to any automatic stay or injunction, the Court will lift the stay in this
case prior to the final termination of the bankruptcy proceedings. The Court
GRANTS the motion [# 121]. The Court DIRECTS the Clerk to LIFT the STAY
in these proceedings and REOPEN this case. The Court DIRECTS counsel for

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both parties to confer and jointly submit a report to this Court within ten (10) days
of the entry of this Order setting forth whether the parties desire a bench or jury
trial, the estimated length of the trial, and any dates that counsel is unavailable for
trial between now and January 1, 2015. Upon receipt of this joint report, the Court
will enter an Order setting a pretrial conference and a trial date.
Signed: August 13, 2014

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