Opinion
Case No. 2:02-CV-502 TS.
June 23, 2004
ORDER TO SHOW CAUSE
This matter is before the court on the Notice of Status filed by defendants Iverna P. Morgan and General Securities Transfer. In response to the court's Order of June 1, 2004, directing that the Plaintiff and certain of the defendants file Notices of Status addressing whether this case should be administratively closed during the bankruptcy of defendant Eagle Building Technologies, defendants Iverna P. Morgan and General Securities Transfer filed a Notice setting forth that since July 16, 2002, Plaintiff has failed to prosecute this case. Upon the court's own review of the docket, it appears that Plaintiff has not prosecuted the case during that period. Plaintiff failed to respond to the court's directive that it file a Notice of Status within ten days of the entry of the June 1, 2004 Order.
It is clear that this case is stayed as to defendant Eagle Building Technologies, even if the action contemplated is dismissal for failure to prosecute.Ellis v. Consolidated Diesel Electric Corp., 894 F.2d 371, 373 (10th Cir. 1990) (automatic stay applies to actions which are against the debtor at their inception, regardless of whether the act stayed would be favorable or unfavorable to the debtor-defendant). However, the case is not stayed as to the remaining non-debtor defendants. Mason v. Okla. Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir. 1997) (automatic stay stays litigation only against the debtor-defendant and affords no protection to solvent co-defendants). It is therefore
ORDERED that Plaintiff is hereby ordered to show cause why the above-captioned case should not be dismissed as to defendants General Securities Transfer, Iverna P. Morgan, and Anthony M. D'Amato, for the failure to prosecute. Plaintiff is directed to respond in writing within ten days from the date of this order and inform the Court of the status of the case and intentions to proceed as to those defendants. Failure to do so will result in dismissal of the claims against those defendants without further notice or a hearing. It is further
ORDERED that this order to show cause does not involve Plaintiff's claim(s) against defendant Eagle Building Technologies, Inc.