Opinion
CASE NO. 2:08cv-573-MEF (WO).
March 9, 2009
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Defendant Jamarlo Gumbaytay's Motions to Dismiss (Docs. # 8 12) filed on August 15, 2008 and August 28, 2008. On July 17, 2008, Plaintiff brought suit against Defendants pursuant to Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. §§ 3601- 3619 ("Fair Housing Act"). Plaintiff filed an Amended Complaint on January 7, 2009, with additional claims pursuant to the Fair Housing Act against Defendants. Plaintiff alleges that Jamarlo Gumbaytay ("Gumbaytay") engaged in a pattern of unlawful discrimination on the basis of sex in connection with the rental of Defendants' properties. In particular, Plaintiff alleges that Gumbaytay engaged in discriminatory conduct from 2005 through the present.
Gumbaytay seeks dismissal of the claims against him because he contends the automatic stay provision in Bankruptcy Code, 11 U.S.C. § 362(a) ("section 362(a)") applies to him. He argues that he filed a bankruptcy petition in 2003 and that section 362(a) requires this Court dismiss the case against him. The Court disagrees.
By its own terms, section 362 precludes application of the automatic stay to this action. First, section 362(c) provides that an automatic stay expires when the bankruptcy court dismisses the bankruptcy petition. 11 U.S.C. § 362(c) (providing that the stay continues until the earliest of (A) the time of the case is closed, (B) the time the case is dismissed, or (C) the time a discharge is granted); U.S. v. White, 466 F.3d 1241, 1244 (11th Cir. 2006) (finding that an automatic stay is lifted at the time of discharge). Here, Gumbaytay filed for bankruptcy in the Federal Bankruptcy Court for the Middle District of Alabama on August 27, 2003. In re Jamarlo Gumbaytay, No. 03-32624, (Bankr. M.D. Ala 2003). On July 25, 2008, the bankruptcy court dismissed Gumbaytay's petition. Id. Any automatic stay expired, therefore, when the bankruptcy court dismissed the bankruptcy petition on July 25, 2008.
Second, pursuant to section 362(a), a bankruptcy petition filing "operates as a stay applicable to . . . proceedings 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). As a result, section 362(a) does not apply to conduct that occurs after the filing of a bankruptcy provision. Id.; Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 996 (5th Cir. 1985) (stating that section 362(a)'s stay provision "simply does not apply to post-bankruptcy events"). Gumbaytay filed for bankruptcy in August of 2003. The Amended Complaint in this action alleges discriminatory conduct occurring after 2003. See Doc. #45, ¶ 18. Because the automatic stay does not apply to claims arising after the filing of a bankruptcy petition, an automatic stay does not apply to this action.
For the foregoing reasons, it is hereby ORDERED that Defendant Jamarlo Gumbaytay's Motions to Dismiss (Doc. # 8 12) are DENIED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).