Opinion
Case No. 10-22983-CIV-O'SULLIVAN, [CONSENT].
June 24, 2011
ORDER
THIS MATTER is before the Court sua sponte on the Special Appearance to Challenge Jurisdiction and to Quash Service of Process and to Dismiss for Failure to Effect Service within 120 Days (DE# 6, 12/20/10).
The individual defendant, Massimiliano Guerri, informs the Court that he filed a petition for bankruptcy. See, Suggestion of Bankruptcy (DE# 10, 2/3/11). By operation of Title 11 United States Code Section 362, the above-styled action is STAYED as to the individual defendant, Mr. Guerri.
Title 11 United States Code Section 362 stipulates that an automatic stay is created upon the filing of any bankruptcy petition. See Ellison v. Northwest Eng'g Co., 707 F.2d 1310, 1311 (11th Cir. 1983). The purpose of the stay is "to give the debtor a breathing spell from his creditors." Id. Accordingly, it is
ORDERED AND ADJUDGED that the Special Appearance to Challenge Jurisdiction and to Quash Service of Process and to Dismiss for Failure to Effect Service within 120 Days (DE# 6, 12/20/10) is DENIED without prejudice to renew after the automatic stay is lifted. It is further
ORDERED AND ADJUDGED that this case is STAYED as to the individual defendant, Mr. Guerri. It is further
ORDERED AND ADJUDGED that the case remains open as to the co-defendant, Crea Café, because the protection of the automatic stay does not apply to co-defendants who are not in bankruptcy.See In re Sunbeam Securities Litigation, 261 B.R. 534, 536 (S.D. Fla. 2001) (noting that "[t]he law makes clear . . . that the automatic stay provisions . . . generally are not available to third-party non debtors"); Dewitt v. Daley, 336 B.R. 552, 556 (S.D. Fla. 2006) (noting that "the case law is clear that extending a stay to non-bankrupt co-defendants is done rarely, justified only in `unusual circumstances'").
DONE AND ORDERED in Chambers at Miami, Florida.