AMELIO v. MCCABE, WEISBERG & CONWAY, P.C. et al

Filing 15

ORDER denying 9 motion to strike; denying 9 motion to vacate; denying 11 motion for temporary restraining order. Plaintiff given leave to file a substantive response to 2 motion to dismiss on or before 3/13/2015. Failure to file a response will be considered consent to dismissal. Signed by Chief Judge Joy Flowers Conti on 3/4/2015. (blr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Alfonso AMELIO,
Plaintiff,
v.

Civil Action No. 14-1611

McCABE, WEISBERG & CONWAY, P.C.
et al.,
Defendants.

ORDER
The court reviewed the motion to strike and vacate the motion to dismiss (ECF
No. 9) and motion for a temporary restraining order (ECF No. 11) filed by plaintiff
Alfonso Amelio (“plaintiff ”) and defendants’ responses thereto (ECF Nos. 13 and 14).
It is hereby ordered that the motion to strike and vacate and the motion for a
temporary restraining order are denied.
By its terms, the Bankruptcy Code’s automatic stay provision applies to “the
commencement or continuation … of a judicial, administrative, or other action or
proceeding against the debtor that was or could have been commenced before the
commencement of the case under this title.” 11 U.S.C. § 362(a)(1) (emphasis added).
The automatic stay does not apply to defenses raised in actions brought by the debtor.
ACandS, Inc. v. Travelers Cas. & Sur. Co., 435 F.3d 252, 259 (3d Cir. 2006) (“Defenses,
as opposed to counter-claims, do not violate the automatic stay because the stay does
not seek to prevent defendants sued by a debtor from defending their legal rights . . . .”).
There is no basis for striking defendants’ motion to dismiss or granting a temporary
restraining order.
Plaintiff is granted leave to file a substantive response to the motion to dismiss
on or before March 13, 2015. Plaintiff ’s failure to file a response will be considered
consent to dismissal.
Dated: March 4, 2015

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge