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Stewart, V. A.G. Edwards Sons, Inc.

United States District Court, D. South Carolina, Columbia Division
Apr 10, 1987
74 B.R. 26 (Bankr. D.S.C. 1987)

Summary

holding that while bankruptcy operates as a stay of the commencement or continuation of a judicial proceeding, it is not tantamount to a dismissal of a non-diverse defendant

Summary of this case from Electrolux Home Prods., Inc. v. Crestmark Bank

Opinion

Civ. A. No. 3:86-3130-16.

April 10, 1987.

Mitchell M. Willoughby, Columbia, S.C., for plaintiff.

Thomas R. Gottshall, Columbia, S.C., for defendants.


ORDER


This matter is before the Court on the plaintiff's motion for summary dismissal pursuant to 28 U.S.C. § 1446(c)(4). For the reasons set forth below, the motion is granted.

The plaintiff brought this action in state court alleging violations of the South Carolina Uniform Securities Act, §§ 35-1-10 et seq., of the Code of Laws of South Carolina, 1976, and common law fraud in the sale of a security and in the obtaining of a release. The plaintiff is a resident of South Carolina as is the defendant Edward Martin Meadows. The two remaining defendants are corporations incorporated in states other than South Carolina with their principal places of business outside South Carolina.

In November 1986, Meadows filed a petition in the United States Bankruptcy Court for relief under the bankruptcy statutes. Defendant A.G. Edwards Sons, Inc., then petitioned for removal of this action to the United States District Court on grounds that diversity of citizenship was created when "jurisdiction over matters relating to Meadows was moved to the Federal Bankruptcy Court."

Removal in this action is improper because diversity of citizenship does not exist. While Meadows' bankruptcy petition operates as a stay of the "commencement or continuation . . . of a judicial . . . action or proceeding against the debtor," 11 U.S.C. § 362(a), it is not tantamount to a dismissal of Meadows as a party defendant in this action but merely suspends the proceedings. See David v. The Hooker, Ltd., 560 F.2d 412 (9th Cir. 1977). The stay continues in effect only until one of the events specified in the Bankruptcy Act occurs. 11 U.S.C. § 362(c)(2).

Where diversity does not exist among the parties at the commencement of the state court action, it can be tested again at the time of removal only if the removal is premised on actions by the plaintiff amounting to a voluntary dismissal of the nondiverse defendant. Heniford v. American Motors Sales Corp., 471 F. Supp. 328, 334 (D.S.C. 1979). Because the Court finds that Meadows' bankruptcy petition does not operate as a dismissal, however, we do not reach the issue of whether the dismissal must amount to a voluntary dismissal by the plaintiff as required by Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303 (1900).

Accordingly, this action is remanded to the Court of Common Pleas, County of Richland, State of South Carolina. Further, the actions entitled Rabon, et al. v. A.G. Edwards Sons, Inc., et al., C.A. No. 86-3112; Gerald D. Fielder v. A.G. Edwards Sons, Inc., et al., C.A. No. 86-3113; Donald M. Buzhardt v. A.G. Edwards Sons, Inc., et al., C.A. No. 86-3114; Linda M. Kelly v. A.G. Edwards Sons, Inc., et al., C.A. No. 86-3115; Krofchick, et al. v. A.G. Edwards Sons, Inc., et al., C.A. No. 86-3116; Dorothy M. Krofchick v. A.G. Edwards Sons, Inc., et al., C.A. No. 86-3117; Col. Ralph M. Hofmann v. A.G. Edwards Sons, Inc., et al., C.A. No. 86-3125; Fuller, et al. v. A.G. Edwards Sons, Inc., et al., C.A. No. 86-3126; C.J. David v. A.G. Edwards, Inc., et al., C.A. No. 86-3127; Henry Castles v. A.G. Edwards Sons, Inc., et al., C.A. No. 86-3128; Robert C. Dalrymple v. A.G. Edwards Sons, Inc., et al., C.A. No. 86-3129; Scott, et al. v. A.G. Edwards Sons, Inc., et al., C.A. No. 86-3131, which are companion cases also removed to this Court, are likewise remanded for the reasons set forth above.

IT IS SO ORDERED.


Summaries of

Stewart, V. A.G. Edwards Sons, Inc.

United States District Court, D. South Carolina, Columbia Division
Apr 10, 1987
74 B.R. 26 (Bankr. D.S.C. 1987)

holding that while bankruptcy operates as a stay of the commencement or continuation of a judicial proceeding, it is not tantamount to a dismissal of a non-diverse defendant

Summary of this case from Electrolux Home Prods., Inc. v. Crestmark Bank

In Stewart v. A.G. Edwards Sons, Inc., 74 B.R. 26 (1987), Everett D. Stewart, a South Carolina plaintiff brought an action against Edward Martin Meadows, a South Carolina defendant, and A.G. Edwards Sons, Inc. and Ecco Gas Corporations, two foreign corporations.

Summary of this case from Rabun v. Honda Motor Company

declining to exercise removal jurisdiction based on diversity when the only non-diverse defendant filed for bankruptcy

Summary of this case from Reichley v. Abercrombie Fitch Stores, Inc.
Case details for

Stewart, V. A.G. Edwards Sons, Inc.

Case Details

Full title:Everett D. STEWART, Plaintiff, v. A.G. EDWARDS SONS, INC., Edward Martin…

Court:United States District Court, D. South Carolina, Columbia Division

Date published: Apr 10, 1987

Citations

74 B.R. 26 (Bankr. D.S.C. 1987)

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