Kona Ice, Inc. v. Hunt

Filing 54

ORDER STAYING CASE pending Defendants completion of his Chapter 13 plan, ORDER TO SHOW CAUSE( Show Cause Hearing set for 9/9/2015 10:00 AM in Courtroom 2-1, 401 W Trade St, Charlotte, NC 28202 before District Judge Robert J. Conrad Jr.). Signed by District Judge Robert J. Conrad, Jr on 8/26/2015. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-502-RJC-DSC
KONA ICE, INC.,

)
)
Plaintiff,
)
)
v.
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)
JEREMY BRYAN HUNT
)
d/b/a BIG KAHUNA
)
)
Defendant.
)
____________________________________ )

ORDER

THIS MATTER comes before the Court on Plaintiff’s Motion to Find Defendant in
Contempt and for Sanctions (“Motion for Contempt”), (Doc. No. 32), and Defendant’s Notice of
Filing of Bankruptcy Proceeding and Notice of Stay as to Defendant Jeremy Bryan Hunt
(“Notice of Bankruptcy”), (Doc. No. 53).
I.

BACKGROUND
Plaintiff Kona Ice (“Plaintiff”) filed its Complaint against defendant Jeremy Bryan Hunt

d/b/a Big Kahuna (“Defendant”) on September 6, 2013, for patent infringement. (Doc. No. 1).
On July 1, 2014, Plaintiff filed a Motion for Partial Summary Judgment of Infringement and
Patent Validity. (Doc. No. 24). On September 4, 2014, Plaintiff filed its Motion for Contempt,
(Doc. No. 32), for Defendant’s failure to pay sanctions for discovery abuses as ordered by the
Court in two separate Orders, (Doc. Nos. 25, 30).
The Court granted in part and denied in part Plaintiff’s Motion for Partial Summary
Judgment on March 31, 2015. (Doc. No. 51). On May 21, 2015, Defendant filed a Notice of
Bankruptcy providing notice that he had filed a petition under Chapter 13 of the United States
Bankruptcy Code and that an Order for Relief had been entered by the United States Bankruptcy
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Court for the Western District of North Carolina. (Doc. No. 53).
II.

DISCUSSION
The filing of a Chapter 13 petition automatically stays all claims against the debtor under

section 362 of the United States Bankruptcy Code. 11 U.S.C. § 362; In re Litton, 330 F.3d 636,
640 (4th Cir. 2003). Accordingly, this Court enters an ORDER of STAY pending Defendant’s
completion of his Chapter 13 plan. The parties are directed to inform the Court upon the
conclusion of the bankruptcy plan. Until then, the parties are to avoid filings with the exception
of reports informing the Court of the status of the bankruptcy plan.
However, “a contempt action for nonpayment of court-ordered sanctions is exempted
from the automatic stay unless the proceeding turns on the determination or collection of the
underlying judgment.” In re Dingley, 514 B.R. 591, 600 (B.A.P. 9th Cir. 2014); see also In re
Rook, 102 B.R. 490, 493 (Bankr. E.D. Va. 1989), aff'd, 929 F.2d 694 (4th Cir. 1991) (holding
that the automatic stay was not applicable to contempt proceedings to enforce a court order).
Plaintiff’s Motion for Contempt, (Doc. No. 32), therefore, is not stayed by Defendant’s
bankruptcy proceeding. Accordingly, the Court ORDERS that Defendant appear on
Wednesday, September 9, 2015, at 10 a.m. to show cause why he should not be held in
contempt.
III.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

This case is STAYED pending Defendant’s completion of his Chapter 13 plan;

2.

The parties inform the Court upon the conclusion of the bankruptcy plan; and

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3.

Defendant appear on Wednesday, September 9, 2015, at 10 a.m. to show cause
why he should not be held in contempt.

Signed: August 26, 2015

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