Schumacher Homes of North Carolina, Inc. et al v. Buchanan et al
ORDER granting Pltfs' 28 Motion to Stay Pending Appeal. Signed by Magistrate Judge W. Carleton Metcalf on 9/16/2022. (ejb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
SCHUMACHER HOMES OF
NORTH CAROLINA, INC. and
KEITH BUCHANAN and
_________________________________ _____ )
This matter is before the Court on Plaintiffs’ Motion for Stay Pending
Appeal (the “Motion to Stay,” Doc. 28).
On September 28, 2021, Plaintiffs filed their Complaint. Doc. 1.
Defendants filed an answer and counterclaim on November 29, 2021. Doc. 13.
On December 20, 2021, Plaintiffs filed a “Motion to Dismiss
Counterclaims and Compel Arbitration” (the “Motion to Dismiss,” Doc. 16), by
which Plaintiffs asserted that Defendants’ counterclaims were subject to
“contractually-mandated arbitration.” Doc. 17 at 2.
On July 14, 2022, the District Court denied the Motion to Dismiss. Doc.
Case 1:21-cv-00260-MOC-WCM Document 32 Filed 09/16/22 Page 1 of 2
On August 15, 2022, Plaintiffs filed a Notice of Appeal as well as the
Motion to Stay. Docs. 27, 28. Defendants have not filed a response to the
Motion to Stay and the time to do so has passed.
The Fourth Circuit has held that “an appeal on the issue of arbitrability
automatically divests the district court of jurisdiction over the underlying
claims and requires a stay of the action, unless the district court certifies the
appeal as frivolous or forfeited.” Levin v. Alms & Assocs., 634 F.3d 260, 266
(4th Cir. 2011). Absent such certification, a district court “necessarily lack[s]
jurisdiction over the continuation of any proceedings relating to the claims at
issue.” Id. at 264 (emphasis added).1
Here, Defendants have not responded to the Motion to Stay or asserted
that Plaintiffs’ interlocutory appeal is frivolous or forfeited, and the
undersigned concludes that the Motion should be allowed.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Stay Pending
Appeal (Doc. 28) is GRANTED.
Signed: September 16, 2022
A district court does, however, retain jurisdiction to consider a motion to stay. See
Wolfe v. Clarke, 718 F.3d 277, 281, n. 3 (4th Cir. 2013).
Case 1:21-cv-00260-MOC-WCM Document 32 Filed 09/16/22 Page 2 of 2
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