Case 15-16885-LMI Doc 433 Filed 08/05/15 Page 1 of 7 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION www.flsb.uscourts.gov IN RE: CHAPTER 11 ADINATH CORP. and SIMPLY FASHION STORES, LTD., CASE NO.: 15-16885-LMI (Jointly Administered) Debtor. / MOTION FOR RELIEF FROM STAY TO CONTINUE LAWSUIT AGAINST NON-DEBTOR CO-DEFENDANT Any interested party who fails to file and serve a written response to this motion within 14 days after the date of service stated in this motion shall, pursuant to Local Rule 4001-1(C), be deemed to have consented to the entry of an order granting the relief requested in the motion. Movant, Latonya Sims, through counsel and pursuant to 11 U.S.C. Sec. 362(d), Rule 4001(a) of the Federal Rules of Bankruptcy Procedure and Local Rule 4001-1 moves this Court for the entry of an order modifying the automatic stay to allow movant to dismiss Debtor Simply Fashion Stores, LTD from a pending action in the United States District Court, Southern District of Indiana. Movant Latonya Sims, through counsel, files this Motion for Relief from the Automatic Stay to Maintain Litigation Against Non-Debtor Co-Defendant ExactTarget, Inc., and for cause would show: 1. The Petition date in these proceedings is April 16, 2015. Jurisdiction over this matter arises under 28 U.S.C. Sec. 1334 (a) and (b) and 157 (b)(2)(g). 2. On July 23, 2013, Movant Latonya Sims filed a lawsuit, alleging claims for violation of the Telephone Consumer Protection Act ( TCPA ) 47 U.S.C. Sec. 227 et seq. against Debtor Simply Fashion Stores, Ltd. and ExactTarget, Inc. ( ExactTarget ), a non-debtor co-defendant. The ExactTarget TCPA action, filed in the United States
Case 15-16885-LMI Doc 433 Filed 08/05/15 Page 2 of 7 District Court, Southern District of Indiana, Indiana Division, was automatically stayed by the filing of these Chapter 11 proceedings. 3. Movant Sims, wishes to pursue his/her claims and litigation against the non-debtor co-defendant ExactTarget and any additional persons or entities (other than the Debtors). Upon lifting the stay, with leave of court, movant would dismiss Debtor Simply Fashion Stores, Ltd. from the ExactTarget TCPA action and would not seek to pursue the litigated claims against the debtors. MEMORANDUM OF LAW It is well-established that the automatic stay, pursuant to Sec. 362, is limited to debtors in bankruptcy and does not extend to non-bankrupt codefendants. See e.g. Fortier v. Dona Anna Plaza Partners, (10 th Cir., 1984) 747 F.2d 1324; In re Hidden Pointe Properties, 343 B.R. 372 (N.D. Ga., 2005). The co-defendant ExactTarget is not a debtor in this Chapter 11 case and is not protected by the automatic stay. Fortier, 1330. Movant, Latonya Sims, seeks limited stay relief, for the sole purpose of dismissing the debtor Simply Fashion Stores, Ltd. from the ExactTarget TCPA action. The proposed dismissal of Simply Fashion Stores, Ltd. and the prosecution of the ExactTarget TCPA action will have no impact on this bankruptcy estate. It would make no sense to extend the automatic stay protections to solvent co-defendants. They don't need it, and at the same time it would work a hardship on plaintiffs, by giving an unwarranted immunity from suit to solvent co-defendants. Fortier, at 1330. Likewise, extending the stay to ExactTarget makes no sense since this non-bankrupt entity does not require this protection. In addition, the continued stay of the ExactTarget TCPA action effectively immunizes a solvent business ExactTarget, Inc. -- from thousands of alleged violations of a federal statute and imposes a hardship on plaintiffs and members of the proposed class who seek to impose statutory liability for these violations. 2
Case 15-16885-LMI Doc 433 Filed 08/05/15 Page 3 of 7 WHEREFORE, movant Latonya Sims respectfully requests that the automatic stay be lifted, to allow her to proceed with the ExactTarget TCPA action against non-debtor codefendant ExactTarget and to dismiss debtor Simply Fashion Stores, Ltd. from the ExactTarget TCPA action. Movant further requests that the Court grant such other and further relief as may be considered just. I HEREBY CERTIFY that, pursuant to L.R. 9073-1(D), Movant s counsel has contacted debtor s counsel in a good faith attempt to resolve the matter without a hearing. Debtors counsel does not oppose the request for relief. I further certify that a true and correct copy of the foregoing was served on electronically to the debtor, the attorney for the debtor, the trustee, all CM/ECF subscribers, and by email or U.S. Mail on those parties listed on the attached service list this 5 th day of August, 2015. I HEREBY CERTIFY that I am admitted to the Bar of the United State District Court for the Southern District of Florida and I am in compliance with the additional qualifications to practice in this court set forth in Local Rule 2090-1(A). FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. By: /s/ Seth Lehrman Seth Lehrman FLBN 132896 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954)524-2820 (954)524-2822 Fax seth@pathtojustice.com 3
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Case 15-16885-LMI Doc 433-1 Filed 08/05/15 Page 1 of 3 Laurel M. Isicoff, Judge United States Bankruptcy Judge UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION www.flsb.uscourts.gov In re: ADINATH CORP. and SIMPLY FASHION STORES, LTD., 1 Chapter 11 Cases Case No. 15-16885-LMI (Jointly Administered) Debtors. / ORDER GRANTING MOTION FOR RELIEF FROM STAY THIS MATTER came before the Court on the day of, 2015 at _:.m. in Miami, Florida upon the motion dated August, 2015 [ECF No. ] (the Motion ), of Latonya Simms ( Simms ) seeking relief from the automatic stay imposed by 11 U.S.C. 362 in the Debtors jointly-administered bankruptcy cases pending in this Court, to dismiss the Debtor Simply Fashion Stores, Ltd., as a defendant in an action pending in the United States District Court for the Southern District of Indiana styled, Latonya Simms, on behalf of herself, and all others similarly situated v. Simply Fashion Stores Ltd, and ExactTarget, Inc., Cause No. 1:14- CV-00737-WTL-DKL (the Action ). The Court, having considered the Motion, finds that: (i) the Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334; (ii) this is a core proceeding pursuant to 28 U.S.C. 157; (iii) venue is proper before this Court pursuant to 1 The Debtors in these cases, along with the addresses and last four digits of each Debtor s federal tax identification number are: (i) Adinath Corp., 2110 N.W. 95 th Avenue, Miami FL 33172 (4843); and (ii) Simply Fashion Stores, Ltd., 2500 Crestwood Boulevard, Birmingham, AL 35210 (6230). 6562923-4
Case 15-16885-LMI Doc 433-1 Filed 08/05/15 Page 2 of 3 28 U.S.C. 1408 and 1409; (iv) notice of the Motion was proper and sufficient under the circumstances and no other or further notice is necessary; (v) the relief requested in the Motion is in the best interests of the Debtors, their estates and creditors; (vi) the Court having heard the arguments of counsel at the hearing to consider the Motion; and (vii) and the Court has determined that the legal and factual bases set forth in the Motion and at the hearing to consider the Motion establish just cause for the relief granted herein, it is ORDERED that: 1. The Motion is GRANTED. 2. The automatic stay imposed by 11 U.S.C. 362 in the Debtors chapter 11 bankruptcy cases pending in this Court is hereby lifted for the limited purpose of permitting Simms in the Action (i) to dismiss debtor Simply Fashion Stores, Ltd. as a defendant in the Action, including dismissing all of the ExactTarget TCPA (as defined in the Motion) action claims against the debtor Simply Fashion Stores, Ltd., and (ii) to resume the litigation of the ExactTarget TCPA action against the co-defendant, non-debtor ExactTarget, Inc. 3. The automatic stay is not lifted for any other purpose. 4. No costs or expenses in, or related to, the Action shall be allowed to be imposed upon the Debtors. 5. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation, interpretation, and/or enforcement of this Order. # # # Submitted by: Seth Lehrman, Esq. Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 425 N. Andrews Ave., Ste. 2 6562923-4 2
Case 15-16885-LMI Doc 433-1 Filed 08/05/15 Page 3 of 3 Ft. Lauderdale, Florida 33301 Telephone: 954-524-2820 Facsimile: 954-524-2822 seth@pathtojustice.com Copies furnished to: Seth Lehrman, Esq. (Attorney Lehrman is directed to serve a signed copy of this Order upon all interested parties and to file a Certificate of Service with the Court.) 6562923-4 3
Case 15-16885-LMI Doc 433-2 Filed 08/05/15 Page 1 of 7 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION www.flsb.uscourts.gov IN RE: CHAPTER 11 ADINATH CORP. and SIMPLY FASHION STORES, LTD., CASE NO.: 15-16885-LMI (Jointly Administered) Debtor. / MOTION FOR RELIEF FROM STAY TO CONTINUE LAWSUIT AGAINST NON-DEBTOR CO-DEFENDANT Any interested party who fails to file and serve a written response to this motion within 14 days after the date of service stated in this motion shall, pursuant to Local Rule 4001-1(C), be deemed to have consented to the entry of an order granting the relief requested in the motion. Movant, Latonya Sims, through counsel and pursuant to 11 U.S.C. Sec. 362(d), Rule 4001(a) of the Federal Rules of Bankruptcy Procedure and Local Rule 4001-1 moves this Court for the entry of an order modifying the automatic stay to allow movant to dismiss Debtor Simply Fashion Stores, LTD from a pending action in the United States District Court, Southern District of Indiana. Movant Latonya Sims, through counsel, files this Motion for Relief from the Automatic Stay to Maintain Litigation Against Non-Debtor Co-Defendant ExactTarget, Inc., and for cause would show: 1. The Petition date in these proceedings is April 16, 2015. Jurisdiction over this matter arises under 28 U.S.C. Sec. 1334 (a) and (b) and 157 (b)(2)(g). 2. On July 23, 2013, Movant Latonya Sims filed a lawsuit, alleging claims for violation of the Telephone Consumer Protection Act ( TCPA ) 47 U.S.C. Sec. 227 et seq. against Debtor Simply Fashion Stores, Ltd. and ExactTarget, Inc. ( ExactTarget ), a non-debtor co-defendant. The ExactTarget TCPA action, filed in the United States
Case 15-16885-LMI Doc 433-2 Filed 08/05/15 Page 2 of 7 District Court, Southern District of Indiana, Indiana Division, was automatically stayed by the filing of these Chapter 11 proceedings. 3. Movant Sims, wishes to pursue his/her claims and litigation against the non-debtor co-defendant ExactTarget and any additional persons or entities (other than the Debtors). Upon lifting the stay, with leave of court, movant would dismiss Debtor Simply Fashion Stores, Ltd. from the ExactTarget TCPA action and would not seek to pursue the litigated claims against the debtors. MEMORANDUM OF LAW It is well-established that the automatic stay, pursuant to Sec. 362, is limited to debtors in bankruptcy and does not extend to non-bankrupt codefendants. See e.g. Fortier v. Dona Anna Plaza Partners, (10 th Cir., 1984) 747 F.2d 1324; In re Hidden Pointe Properties, 343 B.R. 372 (N.D. Ga., 2005). The co-defendant ExactTarget is not a debtor in this Chapter 11 case and is not protected by the automatic stay. Fortier, 1330. Movant, Latonya Sims, seeks limited stay relief, for the sole purpose of dismissing the debtor Simply Fashion Stores, Ltd. from the ExactTarget TCPA action. The proposed dismissal of Simply Fashion Stores, Ltd. and the prosecution of the ExactTarget TCPA action will have no impact on this bankruptcy estate. It would make no sense to extend the automatic stay protections to solvent co-defendants. They don't need it, and at the same time it would work a hardship on plaintiffs, by giving an unwarranted immunity from suit to solvent co-defendants. Fortier, at 1330. Likewise, extending the stay to ExactTarget makes no sense since this non-bankrupt entity does not require this protection. In addition, the continued stay of the ExactTarget TCPA action effectively immunizes a solvent business ExactTarget, Inc. -- from thousands of alleged violations of a federal statute and imposes a hardship on plaintiffs and members of the proposed class who seek to impose statutory liability for these violations. 2
Case 15-16885-LMI Doc 433-2 Filed 08/05/15 Page 3 of 7 WHEREFORE, movant Latonya Sims respectfully requests that the automatic stay be lifted, to allow her to proceed with the ExactTarget TCPA action against non-debtor codefendant ExactTarget and to dismiss debtor Simply Fashion Stores, Ltd. from the ExactTarget TCPA action. Movant further requests that the Court grant such other and further relief as may be considered just. I HEREBY CERTIFY that, pursuant to L.R. 9073-1(D), Movant s counsel has contacted debtor s counsel in a good faith attempt to resolve the matter without a hearing. Debtors counsel does not oppose the request for relief. I further certify that a true and correct copy of the foregoing was served on electronically to the debtor, the attorney for the debtor, the trustee, all CM/ECF subscribers, and by email or U.S. Mail on those parties listed on the attached service list this 5 th day of August, 2015. I HEREBY CERTIFY that I am admitted to the Bar of the United State District Court for the Southern District of Florida and I am in compliance with the additional qualifications to practice in this court set forth in Local Rule 2090-1(A). FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. By: /s/ Seth Lehrman Seth Lehrman FLBN 132896 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954)524-2820 (954)524-2822 Fax seth@pathtojustice.com 3
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