Building Trades United Pension Trust Fund et al v. Union Construction Corporation et al

Filing 20

ORDER Approving 19 Stipulation of Defendant Lyle L. Vogt. The stay of this action with respect to Vogt is lifted; Vogt is dismissed from this action; No later than 11/15/11, Plaintiffs MUST advise the Court in writing as to how they intend to proceed against Union Construction; Failure to comply with this Order will result in dismissal of this action. Signed by Judge Rudolph T Randa on 10/20/2011. (cc: all counsel)(nts)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

BUILDING TRADES UNITED PENSION
TRUST FUND and NACARCI FEASTER,
INDUSTRY ADVANCEMENT PROGRAM/
CONTRACT ADMINISTRATION FUND,
WISCONSIN MASONS PENSION FUND,
WISCONSIN MASONS HEALTH CARE FUND,
WISCONSIN MASONS APPRENTICESHIP
AND TRAINING FUND,
WISCONSIN MASONS VACATION FUND,
SUBSTANCE ABUSE TESTING
AND ASSISTANCE PROGRAM,
BRICKLAYERS AND TROWEL
TRADES INTERNATIONAL
PENSION FUND,
INTERNATIONAL MASONS INSTITUTE
FUND, and JEFFREY LECKWEE,
BRICKLAYERS AND ALLIED CRAFTWORKERS
DISTRICT COUNCIL OF WISCONSIN,
INTERNATIONAL UNION OF BRICKLAYERS
AND ALLIED CRAFTWORKERS,
INTERNATIONAL COUNCIL OF EMPLOYERS,
WISCONSIN LABORERS HEALTH FUND,
WISCONSIN LABORERS PENSION FUND,
BUILDING & PUBLIC WORKS LABORERS
VACATION FUND, WISCONSIN LABORERS
APPRENTICESHIP AND TRAINING FUND,
and JOHN J. SCHMITT,
WISCONSIN LABORERS-EMPLOYERS
COOPERATION AND EDUCATION
TRUST FUND,

WISCONSIN LABORERS DISTRICT
COUNCIL,
Plaintiffs,
v.

Case No. 11-C-43

UNION CONSTRUCTION CORPORATION
and LYLE L. VOGT,
Defendants.

DECISION AND ORDER

On October 18, 2011, the Plaintiffs filed a “stipulation for dismissal” of this
action against Defendant Lyle A. Vogt (“Vogt”). Although termed a stipulation for dismissal,
the proposed dismissal of Vogt requires a court order because the stipulation is not signed by
Defendant Union Construction Corporation (“Union Construction”), which appeared in this
action on February 22, 2011. See Fed. R. Civ. P. 41(a)(1)(ii)(requiring a stipulation of
dismissal “signed by all parties who have appeared”).
In May 2011, the Plaintiffs attempted to dismiss Vogt from this action.
However, that request was denied because Vogt had a pending joint Chapter 7 bankruptcy
petition in the Eastern District of Wisconsin, see In re: Vogt, No. 11-26 743-jes (Bankr. E.D.
Wis.).
Upon filing of a petition for relief under Chapter 7 of the Bankruptcy Code,
section 362 of Title 11 of the United States Code automatically imposes a stay of efforts
outside the bankruptcy proceeding to collect debts. See In re Radcliffe, 563 F.3d 627, 629 (7th

2

Cir. 2009). The automatic stay remains in effect until the bankruptcy court disposes of the
case or grants relief from the stay. Middle Tenn. News Co., Inc. v. Charnel of Cincinnati, Inc.,
250 F.3d 1077, 1082 (7th Cir. 2001) (citing Matter of Williams, 144 F.3d 544, 546 (7th Cir.
1998)).

As relevant to Vogt, the stay continues until “the time a discharge is granted or

denied.” 11 U.S.C. § 362(c)(2)(C); see also, Matter of James Wilson Assocs., 965 F.2d 160,
167 (7th Cir. 1992). The public record in In re Vogt, discloses that Vogt was granted a
discharge on August 18, 2011.1 Based on the foregoing, the Court will lift the stay as to Vogt
and grant the stipulation for the dismissal of the Plaintiffs’ claims against Vogt.
The rest of this action, which is now solely against Union Construction, requires
attention. The Court’s April 19, 2011, Decision and Order, granted the motion of counsel for
the Defendants to withdraw and, because Union Construction – a corporation – may only
appear by counsel, set a June 16, 2011, deadline for it to retain counsel. That Decision and
Order also informed Union Construction that it would be barred from further participation in
the action and could be subject to adverse legal consequences, including the entry of judgment
against it. Union Construction has not appeared by counsel or responded in any manner to that
April 19, 2011, Decision and Order.
However, the Plaintiffs have not taken any action with respect to Union
Construction since the expiration of the deadline for retaining counsel. As a result, the Court
will set a deadline for the Plaintiffs to inform the Court in writing of their plans with respect

1

As noted in this Court’s May 26, 2011, Decision and Order, courts may take judicial notice of matters in
the public record. See Deicher v. City of Evansville, Wis., 545 F.3d 537, 541-42 (7th Cir. 2008).

3

to the Union Construction. Failure to comply with this Order by the stated deadline will result
in the dismissal of this action. See Civil L.R. 41(b)(E.D. Wis.).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
The stay of this action with respect to Vogt is LIFTED.
Vogt is DISMISSED from this action.
No later than November 15, 2011, the Plaintiffs MUST advise the Court in
writing as to how they intend to proceed against Union Construction; and
Failure to comply with this Order will result in dismissal of this action.
Dated at Milwaukee, Wisconsin this 20th day of October, 2011.
BY THE COURT

_______________________
Hon. Rudolph T. Randa
U.S. District Judge

4