Pig Boys v. All Star Catering et al

Filing 40

MEMORANDUM DECISION and Order-granting 36 Motion Lift Stay As to Nicholas Firkins and All Star Catering filed by Plaintiff Pig Boys. Motions referred to Brooke C. Wells. Signed by Judge Clark Waddoups on 12/5/11. (jmr)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

PIG BOYS, INC., a Utah corporation,
Plaintiff,

MEMORANDUM DECISION AND
ORDER

vs.

ALL STAR CATERING LLC, a New Mexico
limited liability company, et al.,

Case No. 2:11-cv-78 CW

Defendants.

Now before the court is a motion to lift the stay as to Defendants Nicholas Firkins and All
Star Catering LLC (Dkt. No. 36). As discussed below, that motion is GRANTED.
On October 25, 2011, Defendant Richard Firkins filed a notice that he had filed for
bankruptcy. Thereafter, the clerk of court stayed the entire action. On October 31, Plaintiff filed
a motion to lift the stay as to Nicholas Firkins and All Star, because there is no indication that
these Defendants are insolvent. These Defendants have not opposed the motion. In the Tenth
Circuit, the general rule is that the automatic stay does not extend to solvent parties. See
Oklahoma Federated Gold and Numismatics, Inc. v. Blodgett, 24 F.3d 136, 141 (10th Cir. 1994)
(“While § 362 extends the stay provisions of the Bankruptcy Code to the “debtor”, the rule
followed by this circuit and the general rule in other circuits is that the stay provision does not
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extend to solvent codefendants of the debtor.”) (citations omitted). There is no apparent reason
that this rule should not be followed in this case.
For the foregoing reasons, the court GRANTS Plaintiff’s motion to lift the stay as to
Nicholas Firkins and All Star. The stay remains in effect as to Richard Firkins.
DATED this 5th day of December, 2011.
BY THE COURT:
______________________________
Clark Waddoups
United States District Court Judge

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