Leaf Funding Inc v. COOL EXPRESS OF WISCONSIN, INC. et al

Filing 76

ORDER OF DISMISSAL without prejudice as to Melody Wessels, Elaine Wessels, Darrell Wessels and Danny Wessels. Signed by Chief Judge Barbara B Crabb on 2/18/2009. (arw)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------L EA F FUNDING, INC., ORDER Plaintiff, 0 7 - cv -5 8 9 - b b c v. C O O L EXPRESS WISCONSIN, INC., S O U T H E R N WISCONSIN DIESEL & T R AIL ER REPAIR, INC.; MELODY J. WESSELS; ELAINE WESSELS; DARRELL L. WESSELS; DANNY D. WESSELS; D IR EC T CAPITAL CORP., D efendan ts. --------------------------------------------O n November 21, 2008, plaintiff Leaf Funding, Inc. filed a motion for default judgm ent against all defendants other than Direct Capital Corporation. Dkt. #52. On D e cem b er 4, 2008, plaintiff advised the court that defendants Darrell, Melody, Elaine and D arrell Wessels had filed for bankruptcy. Dkt. #54. On December 8, 2008, plaintiff filed an amended motion for default judgment against defendants Cool Express Wisconsin and S ou thern Wisconsin Diesel & Trailer Repair, Inc. only. In the same document, it amended its motion for default judgment against the Wessels defendants, stating that it would not be seeking default judgment against them at that time. Dkt. #56. Accordingly, on December 9 , 2009, the court entered default judgment against defendants Cool Express Wisconsin and

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S o u th ern Wisconsin Diesel & Trailer Repair, Inc., only. Dkt. #58. On February 9, 2009, the court granted summary judgment in favor of plaintiff on its breach of contract claim again st defendant Direct Capital Corporation. Dkt. #74. This leaves defendants Darrell, E lai n e , Danny and Melody Wessels as the only remaining defendants against whom judgm ent has not been entered. A review of the federal court's PACER system confirms that Darrell, Elaine, Danny an d Melody Wessels are still engaged in bankruptcy proceedings before the United States B a nk ru ptcy Court of the Western District of Wisconsin. Case Nos. 08-bk-16191-rdm and 08 -bk-1 6 1 92 -rdm . Because the proceedings in bankruptcy may dispose of plaintiff's case against defendants Darrell, Elaine, Danny and Melody Wessels, IT IS ORDERED that p lain tiff's claims against them are DISMISSED without prejudice, subject to the condition that this order of dismissal shall be vacated in the event that the bankruptcy proceeding is term inated without disposing of the rights of the parties in this case, or a timely request is m ade by either party that this order to dismiss without prejudice be vacated or for any other reason necessary to prevent manifest injustice. In the event that this order of dismissal is

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vacated, the parties shall have all such rights as if this case had not been dismissed. E n tered this 18t h day of February, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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