Kirby Developments LLC v. XPO Global Forwarding, Inc. et al

Filing 47

OPINION and ORDER granting in part and denying in part 38 XPO's Motion to Stay; granting 45 Plaintiff's Motion for Leave to File Sur-Reply; denying 16 Wilkin's Motion to Stay. Signed by Judge George C. Smith on 11/20/18. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KIRBY DEVELOPMENTS, LLC,
Plaintiff,
v.

Case No. 2:18-cv-500
JUDGE GEORGE C. SMITH
Magistrate Judge Jolson

XPO GLOBAL FORWARDING, INC.,
et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court upon motions by Defendants Todd Wilkin and XPO Global
Forwarding, Inc. to stay this action. (Docs. 16 and 38). Plaintiff Kirby Developments LLC
responded. (Docs. 29 and 41) and Defendants replied. (Docs. 36 and 44). Plaintiff also filed a
Motion for Leave to File Sur-Reply (Doc. 45).1 The motions are ripe for disposition. For the
following reasons, Defendant Wilkin’s Motion to Stay is DENIED and XPO’s Motion to Stay is
GRANTED in part and DENIED in part.
I.

BACKGROUND

Plaintiff Kirby Developments LLC’s (“Kirby” or “Plaintiff”) Complaint asserts various
causes of action arising out of a fraudulent scheme allegedly carried out by Defendants XPO
Global Forwarding, Inc. (“XPO”)2, Midwest Coal, LLC (“Midwest”), Mid America Tire of

1

Plaintiff has submitted a Sur-Reply to address matters that Defendant XPO raised for the first time in its Reply.
Accordingly, Plaintiff’s Motion for Leave to File Sur-Reply is GRANTED.
2
Kirby’s Complaint names as a defendant XPO Logistics, but XPO states that its proper name is XPO Global
Forwarding, Inc.

Hillsboro, Inc. d/b/a Best-One Tire & Service of Hillsboro (“Mid America), Afif Baltagi
(“Baltagi”), John Eckerd (“Eckerd”), Todd Wilkin (“Wilkin” or “Defendant”), L.A.D. Impex
Corporation (“LAD”), and Ahmet Neidik (“Neidik”). (Doc. 1, Compl.).
This case arises out of an alleged fraudulent scheme involving the sale of off-the road
mining tires (“OTR Tires”). Eckerd approached Kirby to gauge its interest in the buying and
selling of OTR Tires. (Id. at ¶ 16). Eckerd explained to Kirby that: buyers for the tires—an
Australian company, Giant Tyre Service PTY Ltd. (“Giant Tyres”)—had already been lined up;
the tires were being purchased from a company named Mid America; and when Eckerd conducted
deals with Mid America he usually worked in congruence with another company named Midwest.
(Id. at ¶¶ 17–18, 21).
Shortly thereafter, Eckerd introduced Kirby to Jason Adkins (“Adkins”), the principal of
Midwest. (Id. at ¶ 20). Eckerd claimed that Adkins was a trustworthy individual and a legitimate
businessman. (Id.). Kirby and Midwest, through Adkins, eventually came to an agreement on the
OTR Tire transactions; Adkins agreed to assist Kirby with executing the OTR Tire sales to
overseas buyers. (Id. at ¶ 23). Kirby agreed to invest nearly $6.7 million and Adkins, through
Midwest, would contribute $600,000 and 54 OTR Tires with an alleged value of over $2.7 million.
(Id.). The agreement arranged for the profits from the transactions to be split between the parties.
(Id.). Under the agreement, Kirby agreed to have the OTR Tires stored in an XPO facility in
Houston whose purported branch manager was Balgati. (Id. at ¶ 29). Additionally, the parties
agreed that LAD was to act as the escrow agent and freight forwarder for the OTR Tire
transactions. (Id. at ¶ 37).
After receiving notice that Kirby had obtained the funds, Midwest agreed to commence the
buying and selling of the OTR Tires. (Id. at ¶ 35). After Midwest confirmed that it had fulfilled

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its obligations under the agreement, Kirby would authorize LAD—a company owned by Neidik
and controlled by Neidik and Adkins—to disperse the funds that Kirby sent to Mid America. (Id.
at ¶¶ 35 and 38). LAD was not permitted to release any funds to Mid America without receiving
authorization from Kirby. (Id. at ¶ 37). Kirby alleges that Mid America, through Wilkin, would
prepare false work orders to fraudulently obtain funds from Kirby. (See id. at ¶¶ 42, 48, 53, and
56). Wilkin would also supply Kirby with documentation indicating the amount of tires purchased
and the purchased tires’ serial numbers. (Id. at ¶¶ 43, 49, and 54–55). Likewise, Kirby alleges
that XPO was to not distribute the tires it stored on behalf of Kirby without Kirby’s authorization;
Kirby contends that XPO did disperse such tires without its explicit authorization. (See id. at ¶¶
52, 68–69; see also Docs. 1-14, Ex. M; 1-18, Ex. Q;1-21; Ex. T; 1-22, Ex. U at 2).
Furthermore, the transaction with the Giant Tyres never came to fruition, nor did any sale
of the OTR Tires take place. (See id. at ¶¶ 21, 61 and 63). Kirby alleges that all named Defendants
worked in tandem to perpetuate this scheme to defraud. (See id. at ¶¶ 71– 73). Kirby asserts that
because of this fraudulent enterprise—orchestrated by the above-listed Defendants—it was
defrauded out of $6,691,000. Kirby now seeks damages in the amount it invested and other
damages consequent to that investment and asserts 12 causes of action in its Complaint against
Defendants.
Moreover, Kirby is not the only entity claiming that it was defrauded through sham sales
of tires orchestrated by Adkins, Mid America, and XPO. This Court previously stayed all
proceedings in two related cases involving many of the same players in an alleged fraudulent tire
sale in which Adkins procured financing from Abington Emerson Capital, LLC and Great
Southland Limited. Abington Emerson Capital, LLC v. Adkins, No. 2:17-cv-143, Doc. 144 (S.D.
Ohio June 1, 2018); Great Southland Ltd. v. Landash Corp., No. 2:17-cv-719, Doc. 90 (S.D. Ohio

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June 27, 2018). However, this Court recently lifted the stay over the entirety of the Abington case,
finding that the defendants’ need for the stay no longer outweighed the potential prejudice that
Abington would suffer if the stay were to continue.3 See Abington, No. 2:17-cv-143, Doc. 159
(S.D. Ohio Oct. 3, 2018). Wilkin and XPO now ask the Court to exercise its inherent authority to
stay proceedings as against all Defendants until parallel criminal proceedings have been fully
adjudicated and to avoid prejudice and promote judicial economy. (See generally Docs. 16 and
38).
Around the same time this Court issued the Order lifting the stay in Abington, a Bankruptcy
Court for the Southern District of Ohio was ruling on Abington’s Motion for Comfort Order. The
bankruptcy court found that Section 362(a)(3) stayed entirely Abington’s conversion and negligent
bailment claims and stayed discrete allegations of Abington’s federal and state RICO claims that
required a determination of ownership of the tires in the Landash bankruptcy estate. See In re
Landash Corp., 2:18-bk-503000, Doc. 146, Ord. on Mot. for Comfort Ord. at 2 (Bankr. S.D. Ohio
Oct. 15, 2018). XPO contends that the bankruptcy court’s Order further demonstrates the need for
a stay over the entirety of this action. Plaintiff asserts that a stay is unnecessary and would result
in prejudice to Plaintiff. (See Docs. 44, XPO Rep. at 2–5; 45-1, Pl. Sur-Rep. at 1–2).
II.

STANDARD OF REVIEW

“The power to stay proceedings is incidental to the power inherent in every court to control
the disposition of the causes in its docket with economy of time and effort for itself, for counsel
and for litigants, and the entry of such an order ordinarily rests with the sound discretion of the
District Court.” F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 626 (6th Cir. 2014) (quoting

XPO has filed a Motion for Reconsideration of the Court’s Order lifting the stay in Abington; that Motion is
currently pending before the Court. (See Abington, 2:17-cv-143, Doc. 161, Mot. for Reconsid. (S.D. Ohio Oct. 9,
2018)).
3

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Ohio Envtl. Council v. U.S. Dist. Court, S. Dist. of Ohio, E. Div., 565 F.2d 393, 396 (6th Cir.
1977)); see also Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936). In deciding whether to grant
a stay, courts commonly consider factors such as: (1) the need for a stay; (2) the stage of litigation;
(3) whether the non-moving party will be unduly prejudiced or tactically disadvantaged; (4)
whether a stay will simplify the issues; and (5) whether the burden of litigation will be reduced for
both the parties and the court. Grice Eng’g, Inc. v. JG Innovs., Inc., 691 F. Supp. 2d 915, 920
(W.D. Wis. 2010) (citations omitted); see also Ferrell v. Wyeth–Ayerst Labs., Inc., No. 1:01-cv447, 2005 WL 2709623, at *1 (S.D. Ohio Oct. 21, 2005) (“There is no precise test in this Circuit
for when a stay is appropriate. However, district courts often consider the following facts: the
need for a stay, the balance of potential hardship to the parties and the public, and the promotion
of judicial economy.”). The movant bears the burden of showing both a need for delay and that
“neither the other party nor the public will suffer harm from entry of the order.” Ohio Envtl.
Council, 565 F.2d at 396.
III.

DISCUSSION

Defendants Wilkin and XPO both move to stay this proceeding. Wilkin’s arguments in
favor of a stay take two basic forms: (1) the action should be stayed pending resolution of parallel
criminal proceedings; and (2) the Court should exercise its inherent authority to stay the case in
order to avoid prejudice and promote judicial economy. Likewise, XPO contends that a stay is
necessary for two reasons: 1) the bankruptcy stay extends to this action; and 2) due to the
unavailability of all parties, moving forward with this case would not be economical and would
cause prejudice to Defendants. (See generally Doc. 38, XPO Mot. to Stay). Plaintiff opposes a
stay, arguing that staying this action would result in prejudice to itself, which outweighs
Defendants’ need for a stay. (See generally Docs. 29, Resp. to Wilkin; 41, Resp. to XPO). For

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the reasons that follow, the Court finds that any claim which requires a determination as to the
Landash bankruptcy estate tires’ is stayed so to not interfere with the bankruptcy court’s exclusive
jurisdiction over assets in the bankruptcy estate; but staying the entire action is not warranted at
this time.
A.

Automatic bankruptcy stay
On October 15, 2018, a bankruptcy court for the Southern District of Ohio entered an

opinion finding that some of the tires disputed in this case are property of the Landash Corporation
bankruptcy estate. See In re Landash, Corp., 2:18-bk-50300, Doc. 146 (Bankr. S.D. Ohio Oct. 15,
2018). As such, the bankruptcy court held that the automatic bankruptcy stay extended to any
discrete claim “which require determination of ownership of the tires[.]” Id. at 2. The bankruptcy
court found that § 362(a)(3) stays the entirety of a related case’s conversion and negligent bailment
claims, as well as to any discrete part of a federal or state RICO claim that necessitates a
determination as to the owner of the tires. Id.; see also Abington, No. 2:17-cv-143, Doc. 71,
Second Am. Compl. (S.D. Ohio Feb. 6, 2018).
XPO asserts that the bankruptcy court’s holding necessitates staying the case at bar. XPO
submits that, at a minimum, this Court must stay Plaintiff’s conversion and negligent bailment
claims as the bankruptcy court specifically found that Abington’s claims of such necessitated a
determination of ownership of the tires. In an attempt to distinguish the Bankruptcy Court’s Order
from the case at hand, Plaintiff asserts that Defendants’ Motions to Stay must be denied for the
same reasons this Court lifted the stay in the related Abington case. (See Doc. 45-1, Pl. Sur-Rep.
at 1–2). Plaintiff’s argument ignores the timing of these two events. The Court in Abington issued
the Order lifting the stay prior to the bankruptcy court reducing its oral ruling to writing.

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As such, the Court finds that Counts IX and X of Plaintiff’s Complaint—Plaintiff’s
negligent bailment and conversion claims—are stayed in their entirety pursuant to 11 U.S.C.
§ 362(a)(3). These are the same causes of action that the bankruptcy court found must be stayed
in Abington. See In re Landash Corp., 2:18-bk-50300, Doc. 146 at 2; see also Abington, No. 2:17cv-143, Doc. 71, Second Am. Compl. at ¶¶ 132–142. Further, the discrete allegation contained in
Count VII of Plaintiff’s Complaint—a breach of contract claim against XPO—must also be stayed.
The Court finds that the allegation in paragraph 132 of Plaintiff’s Complaint intrudes upon the
bankruptcy court’s exclusive jurisdiction over the tires in the Landash bankruptcy estate and is
stayed.
However, this Court finds that the automatic bankruptcy stay does not extend to the
remaining allegations in Count VIII nor to Plaintiff’s remaining claims, as such claims do not
necessitate a determination as to ownership over the tires in the Landash bankruptcy estate. The
Court finds that the remaining allegations in Count VIII to be similar to the breach of contract
claim against XPO in Abington’s Second Amended Complaint. (Compare Doc. 1, Compl. ¶¶ 126–
133, with Abington, No. 2:17-cv-143, Doc. 71, Second Am. Compl. at ¶¶ 122–126). Yet, the
bankruptcy court was silent on Abington’s similar breach of contract claim against XPO and made
no express findings that such allegations necessitated a determination of ownership over the tires
as it explicitly did for Abington’s negligent bailment and conversion claims. The Court finds this
silence to be telling and finds no reason to extend the bankruptcy court’s holding beyond its plain
language.
Thus, Counts IX and X of Plaintiff’s Complaint are hereby stayed pursuant to 11 U.S.C.
§ 362(a)(3), likewise the discrete allegation in Plaintiff’s eighth claim—paragraph 132 of the

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Complaint—is stayed. However, the automatic bankruptcy stay does not extend to Plaintiff’s
remaining claims nor to the remaining allegations in Count VIII.
B.

Stay pending resolution of parallel criminal proceedings
Wilkin’s counsel argues that there is reason to believe there is an ongoing parallel criminal

investigation, although the scope of the suspected investigation and exactly how it might parallel
Kirby’s civil claims is unclear. Wilkin argues that Kirby’s Complaint “mirrors an indictment” and
“makes repeated averments of fraudulent conduct and false statements by Mr. Wilkin,” although
“the United States Attorney’s Office for the Southern District of Ohio cannot, as a matter of policy,
confirm or deny the existence of a grand jury investigation into the matters alleged in the
Complaint.” (Doc. 16, Mot. to Stay at 4). The possibility of a criminal investigation, Wilkin
argues, places him
in a constitutionally untenable position: either waive his rights under the Fifth
Amendment in the face of serious allegations of potentially criminal conduct and
the existence of a criminal investigation into those same allegations, or invoke the
Fifth Amendment privilege by declining to respond to discovery and declining to
testify further on his own behalf, thereby prejudicing his ability to defend himself
in the present matter[.]
(Id.)
The Court possesses broad discretion to stay civil litigation pending the resolution of
parallel criminal proceedings. Chao v. Fleming, 498 F. Supp. 2d 1034, 1037 (W.D. Mich. 2007)
(citing Landis v. No. Am. Co., 299 U.S. 248, 254-55 (1936). However, there is no evidence, apart
from defense counsel’s assertion, that any criminal investigation is actually ongoing as to Wilkin.
(See Doc. 36, Rep. at 3). But even if an investigation were ongoing, “a stay of civil proceedings
due to a pending criminal investigation is an extraordinary remedy” that is not generally granted
in the absence of an indictment. F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 627–28 (6th

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Cir. 2014). See also Chao, 498 F. Supp. 2d at 1037 (“[P]re-indictment requests for a stay, as in
this case, are usually denied.”).
When there are pre-indictment indications of a parallel criminal investigation (e.g., when
law enforcement conducts a raid of the defendant’s premises (as in E.M.A. Nationwide), or when
a defendant is notified in writing by the prosecutor of an investigation (as in Chao)), courts
typically undertake a balancing test considering six factors:
1) the extent to which the issues in the criminal case overlap with those presented
in the civil case; 2) the status of the case, including whether the defendants have
been indicted; 3) the private interests of the plaintiffs in proceeding expeditiously
weighed against the prejudice to plaintiffs caused by the delay; 4) the private
interests of and burden on the defendants; 5) the interests of the courts; and 6) the
public interest.
E.M.A. Nationwide, 767 F. 3d at 627. But here, where there are no indications that a criminal
investigation is actually ongoing as to Wilkin. Thus, there is no way for the Court to evaluate the
extent to which the two proceedings may overlap and the effects a criminal investigation might
have on the civil litigation.
Even if Wilkin had evidence of a criminal investigation, his Fifth Amendment concerns
are attenuated by the lack of an indictment. Id. at 629 (“Because there was no indictment, however,
the Fifth Amendment concerns expressed by Defendants are not very compelling.”). Moreover,
Wilkin has already participated in significant discovery in a related action, including sitting for his
deposition where he admitted to wiring most of the money advanced by Abington for the sale of
the tires to Adkins’s personal bank account and signing documents that falsely represented that
Mid America was the owner of the tires. (See Abington, No. 2:17-cv-143, Doc. 67-1, Wilkin Dep.
at 21–23, 48–50).

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The Court is aware of an active criminal case in which Defendant Eckerd has been formally
charged.4 See United States v. Eckerd, 2:18-mj-3556 (D. N.J. 2018). But “‘there is no requirement
that a civil proceeding be stayed pending the outcome of criminal proceedings.’”

E.M.A.

Nationwide, 767 F.3d at 627 (quoting S.E.C. v. Novaferon Labs, Inc., No. 91-3102, 941 F.2d 1210,
1991 WL 158757, at *2 (6th Cir. Aug. 14, 1991)). Presently, the Court is unaware of any other
defendants that have been formally charged via Indictment or Information. Thus, the Court finds
that, at this time, Eckerd’s ongoing criminal case5 does not provide sufficient grounds to stay this
action and that staying this action pending the outcome of Wilkin’s as-yet-hypothetical parallel
criminal investigation is equally uncompelling.
C.

Stay to avoid prejudice and promote judicial economy
Defendants Wilkin and XPO further ask the Court to exercise its discretion to stay this case

so to avoid prejudice and promote judicial economy. Defendant Wilkin states that a stay is
necessary because: 1) Wilkin’s plan to invoke his Fifth Amendment privilege; 2) co-defendants’
current bankruptcy proceedings; and 3) going forward with this case would require “substantial
judicial management of the discovery process.” (Doc. 16, Wilkin Mot. to Stay at 4). Defendant
XPO also requests that the Court stay this action because: 1) at least one related case is stayed; 2)
the unavailability of all Defendants due to ongoing bankruptcy proceedings; and 3) Wilkin’s
invocation of his Fifth Amendment right. (Doc. 38, XPO Mot. to Stay at 3–4). Kirby counters

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The Court need not balance all six factors laid out in E.M.A. Nationwide that a court typically analyzes when a
defendant has been indicted as, at this time, Defendant Eckerd is the only defendant to have been indicted and—
because of his bankruptcy proceeding—this case is stayed as to him. See E.M.A. Nationwide, 767 F.3d at 627
(listing the six factors); United States v. Eckerd, 2:18-mj-3556 (D. N.J. 2018); (see also Doc. 17, Eckerd Suggestion
of Bankr.).
5
Further, it is not clear that Eckerd’s criminal case is connected to this case’s alleged fraudulent scheme as, in the
criminal case, Eckerd has been accused of money laundering in connection with narcotics trafficking. See Eckerd,
2:18-mj-3556, Doc. 1, Crim. Compl. (D.N.J. Mar. 8, 2018).

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that delaying this matter would neither avoid prejudice nor promote judicial economy. (Docs. 29,
Resp. to Wilkin at 5; 41, Resp. to XPO at 6–7). The Court agrees with Plaintiff.
The law is quite settled that the party requesting the stay “must make out a clear case of
hardship or inequity in being required to go forward, if there is even a fair possibility that the stay
for which he prays will work damage to someone else.” Landis v. N. Am. Co., 299 U.S. 248, 255
(1936). “Thus the burden is on the party seeking the stay to show that there is pressing need for
delay, and that neither the other party nor the public will suffer harm from entry of the order.”
Ohio Envtl. Council, 565 F.2d at 396. The Court finds that none of the reasons that Defendants
have presented, either standing alone or taken collectively, establish a sufficiently compelling
reason to stay this action and that the potential prejudice to Plaintiff outweighs the Defendants’
need for the stay. Thus, Defendants have failed to meet their burden of demonstrating the pressing
need for the stay.
As discussed above, Wilkin’s Fifth Amendment concerns are attenuated as he has yet to be
formally charged. See E.M.A. Nationwide, 767 F.3d at 629 (“Because there was no indictment,
however, the Fifth Amendment concerns expressed by Defendants are not very compelling.”).
Additionally, Wilkin’s argument concerning Adkins’ Fifth Amendment right is equally
unpersuasive. Adkins is not a named defendant in this action, his role in this action is only as a
representative of Midwest. (See generally Doc. 1, Compl.). It is well-settled that business
organizations have no Fifth Amendment guarantees against self-incrimination. See United States
v. White, 322 U.S. 694, 698 (“The constitutional privilege against self-incrimination is essentially
a personal one, applying only to natural individuals.”). Likewise, an officer’s personal Fifth
Amendment privilege cannot be extended to the business organization, an officer must produce
the organization’s documents even if such documents are detrimental to the officer personally. See

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Braswell v. United States, 487 U.S. 99, 110 (1988) (“[T]he custodian’s act of production is not
deemed a personal act, but rather an act of the corporation. Any claim of Fifth Amendment
privilege asserted by the agent would be tantamount to a claim of privilege by the corporation—
which of course possesses no such privilege.”); Bellis v. United States, 417 U.S. 85, 87 (1974)
(“[A]n individual cannot rely upon the [Fifth Amendment] privilege to avoid producing the records
of a collective entity which are in his possession in a representative capacity, even if these records
might incriminate him personally.”). Thus, as Adkins is only involved in this case in his
representative capacity, he cannot invoke his personal Fifth Amendment protections and refuse to
respond to discovery requests.
The Court now turns to Defendants’ arguments centered upon stays being issued in related
cases. Defendants submitted their motions on July 12, 2018, and August 28, 2018, prior to the
Court dissolving the stay in Abington. See Abington, No. 2:17-cv-143, Doc. 159, (S.D. Ohio Oct.
3, 2018).6 Additionally, Adkins’ automatic bankruptcy stay has been lifted. See In re Adkins,
2:18-bk-50671 (Bankr. S.D. Ohio 2018). Thus, any arguments that Defendants predicated upon
either the stay in Abington or Adkins’ bankruptcy stay are now moot.
Furthermore, there are currently ongoing proceedings in other courts involving similar
defendants that arose out of similar fraudulent schemes. See Vecron Exim Ltd. v. XPO Logistics,
Inc., et al., No. 4:18-cv-2394 (S.D. Tex.); S. Start Capital, LLC v. XPO Global Logistics, Inc., et
al., No. DC-18-07847 (Dallas Cty. Dist. Ct.). Neither of these cases are currently stayed; in fact,
the court in Vecron recently denied XPO’s motion to stay that action. Vecron Exim Ltd., No. 4:18cv-2394, Doc. 32 at 2. As such, staying this case would lessen Plaintiff’s future potential to recover
from these defendants given these parallel cases in other courts. See Karimona Invs., LLC v.

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The stay in Great Southland Ltd, No. 2:17-cv-719, (S.D. Ohio 2018), is still in effect.

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Weinreb, No. 02-cv-1792, 2003 WL 941404, at *3 (S.D.N.Y. Mar. 7, 2003) (denying defendant’s
motion to stay, finding that: “Plaintiff has legitimate concerns that further delay may prejudice its
ability to recover against” the defendant given defendant is a party in another case that arose of
similar allegations as the case at bar.). Moreover, a stay would delay Plaintiff’s ability to obtain
discovery. As such, the Court finds that staying this action would cause substantial prejudice to
the Plaintiff.
XPO asserts that the Court’s prejudice concerns should be alleviated because “a plethora
of subpoenas” have been issued in related cases “to many of the likely suspects to whom Plaintiff
would wish to issue discover[.]” (Doc. 44, XPO Rep. at 6). XPO further submits that “the concern
about disappearing records in this case should be minimal and alone is not enough to overcome
the burdens associated with proceeding with this case[.]” But this assertion is unpersuasive for
two reasons. First, as further explained above, the potential prejudice to Plaintiff is mainly
predicated upon Plaintiff’s diminished ability to recover from Defendants if this case were stayed
while other related matters continued. Second, XPO confuses upon whom the burden is placed.
The burden is not on the Plaintiff to prove that a stay is not required; it is on the parties seeking
the stay—XPO and Wilkin—to “make out a clear case of hardship or inequity in being required to
go forward.” Landis, 299 U.S. at 255. Neither XPO nor Wilkin has done so.
At this time, XPO’s concern of “piecemeal litigation” due to two of Plaintiff’s claims being
stayed pending the Landash bankruptcy proceeding, does not outweigh the prejudice Plaintiff will
suffer if the Court granted a stay over the entirety of this matter. The Court acknowledges that
some frustration may occur because two of Plaintiff’s claims are stayed, but the potential prejudice
to Plaintiff if the entirety of this action were to be stayed outweighs this frustration. Thus, the

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Court, based on its inherent authority to control its own docket, finds that Defendants’ reasons for
staying this action in its entirety are not sufficiently compelling.
IV.

CONCLUSION

For the foregoing reasons, Wilkin’s Motion to Stay is DENIED; XPO’s Motion to Stay is
GRANTED in part and DENIED in part. Counts IX and X of Plaintiff’s Complaint are stayed
in their entirety pursuant to 11 U.S.C. § 362(a)(3). The discrete allegation7 of Count VIII that
requires a determination of the Landash bankruptcy tires’ ownership is likewise stayed.
Additionally, this matter is currently stayed as to the following Defendants due to their ongoing
bankruptcy proceedings: Eckerd, see In re Eckerd, No. 18-41521 (Bankr. E.D. Tex. 2018); and
Mid America, see In re Mid America Tire of Hillsboro, Inc., No. 1:18-bk-13908 (Bankr. S.D. Ohio
2018). The parties are instructed to contact Magistrate Judge Jolson’s chambers to establish a new
case management schedule.
The Clerk shall remove Documents 16, 38, and 45 from the Court’s pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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Paragraph 132 of Plaintiff’s Complaint.

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