Opinion
Case No. 99-14415-SSM Chapter 7; Adversary Proceeding No. 99-1310
July 12, 2000.
Kevin M. Fitzpatrick, Esquire, Fairfax, VA, Counsel for the Plaintiff.
Sheila Venable, Esquire, Alexandria, VA, Counsel for the Defendant.
MEMORANDUM OPINION AND ORDER
Before the court is the motion of the defendant, Zakia T. Munwani, for a stay of all proceedings in this adversary proceeding pending an appeal by her of that portion of this court's pretrial order extending discovery. A hearing was held in open court on July 11, 2000, at which both plaintiff and defendant were present by counsel. The plaintiff opposes the requested relief.
This is a credit card nondischargeability action. The debtor, Zakia T. Munwani, filed a voluntary chapter 7 petition in this court on August 31, 1999, and received a discharge of her dischargeable debts on March 26, 2000. The present action was commenced by Citibank (South Dakota), N.A. on November 19, 1999, and seeks a determination that $8,613.71 in charges to a Citibank Preferred MasterCard and a Citibank Drivers Edge MasterCard are nondischargeable under 11 U.S.C. § 523 (a)(2)(A), which excludes from discharge debts for extensions of credit obtained by false pretenses, false representations, or actual fraud. Contemporaneous with the issuance of a summons, the clerk issued a standard scheduling order dated November 24, 1999, requiring all discovery to be completed not later than 120 days after issuance of the summons. The debtor filed a timely answer denying the allegations, and, following the discovery cutoff, a motion for summary judgment.
That motion was denied because the debtor had not yet responded to the plaintiff's discovery requests. It was subsequently renewed and was recently denied because material facts remain in dispute.
At the scheduled pretrial conference held on June 13, 2000, counsel for the plaintiff appeared but counsel for the defendant did not. The court scheduled a trial for October 6, 2000, and set dates in advance of trial for the filing of exhibits and objections to exhibits. Consistent with this court's customary practice, the court inquired at the pretrial conference as to the status of discovery and the need for any extensions. See Fed.R.Bankr.P. 7016 and Fed.R.Civ.P. 16(c)(6) (At any pretrial conference, "consideration may be given, and the court may take appropriate action, with respect to . . . the control and scheduling of discovery"). Plaintiff's counsel represented that full discovery responses had not yet been provided, and he requested an opportunity to take the defendant's deposition after receiving and reviewing the interrogatory and document responses. The court accordingly extended discovery to August 18, 2000. That extension was embodied in the pretrial order, which was entered on the docket on June 14, 2000.
No explanation has ever been provided for counsel's failure to appear.
The trial has since been rescheduled for October 20, 2000.
On June 16, 2000, the defendant filed a notice of appeal to the United States District Court as to that portion of the pretrial order which extended the discovery cutoff. Simultaneously, she filed a motion for a stay of all proceedings pending that appeal. On July 3, 2000, the debtor filed a motion for leave to appeal.
In order to obtain a stay pending appeal, the party seeking the stay must show (1) that it will likely prevail on the merits of the appeal; (2) that it will suffer irreparable injury if the stay is denied; (3) that other parties will not be substantially harmed by the stay; and (4) that the public interest will be served by granting the stay. Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970); In re Kent 145 B.R. 843 (Bankr.E.D.Va. 1991) (applying Long). With respect to the first factor, a literal application of the test would be somewhat unfair, since in the very nature of things trial courts do not make rulings they believe are "likely" to be reversed. Accordingly, it is sufficient if the party applying for the stay shows that the issues to be argued on appeal are sufficiently grave, novel, unsettled, or difficult that reversal is a serious possibility, even if it is not "likely" in the everyday sense of that term. In the present case, the court cannot find that the defendant is likely to prevail on appeal. No novel or unsettled legal issues are involved, only the routine application of the court's discretion in extending discovery. Additionally, the order appealed from is not a final order and is therefore appealable only with leave of the District Court. 28 U.S.C. § 158(a)(3); Fed.R.Bankr.P. 8003. There is no showing of irreparable harm to the defendant if discovery continues or trial is held. On the other hand, there will be clear prejudice to the plaintiff if the court stays further discovery. Appeals to the District Court in this district are typically decided in three to four months. If, as seems likely, the defendant is unsuccessful on her appeal, there would be little, if any, time left for the taking of the defendant's deposition prior to the scheduled trial date, and this court would be left with the unpalatable choice of having to continue the trial in order to permit the deposition to take place. Such delay, and the resulting disruptions of the court's docket, would clearly not be in the public interest.
The debtor in her motion misconstrues the pretrial order as a premature ruling on the plaintiff's written motion, filed on June 7, 2000, to compel discovery, award sanctions, and extend the discovery cutoff.
As discussed above, the court was not ruling on that written motion but on the separate oral motion made at the pretrial conference.
ORDER
For the foregoing reasons, it is
ORDERED:
1. The motion for stay of all proceedings pending appeal is denied.
2. The clerk will mail a copy of this memorandum opinion and order to counsel of record.