UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Transcription

1 Document Page 1 of 8 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN RE: MICHAEL TODD CHRISLEY, Chapter 7 Case No MGD Debtor. JASON L. PETTIE, CHAPTER 7 TRUSTEE FOR THE ESTATE OF MICHAEL TODD CHRISLEY, Adversary Proceeding No.: MGD Plaintiff, v. JULIE HUGHES CHRISLEY, Defendant. PLAINTIFF S REPLY BRIEF IN SUPPORT OF HIS MOTION TO MODIFY SCHEDULING ORDER TO EXTEND DEADLINES COMES NOW, Plaintiff Jason L. Pettie, by and through his undersigned counsel and pursuant to Fed. R. Civ. P. 16(b(4 and Local Rules 26.2, 39.5 and 56.1, hereby filed his Reply Brief in Support of his Motion to Modify Scheduling Order to Extend Deadlines ( Reply, respectfully showing this Court the following: Introduction Plaintiff filed his Motion to Modify Scheduling Order to Extend Deadlines ( Motion on October 3, 2014 requesting that this Court extend the discovery

2 Document Page 2 of 8 deadline, dispositive motions deadline and pre-trial order deadline ( Scheduling Deadlines based on the parties desire to mediate and in response to the complex and ever-changing nature of this adversary action and Debtor Michael Todd Chrisley s ( Debtor underlying bankruptcy. This is the first request for additional time and based on the parties desire to mediate, there is no prejudice in extending the Scheduling Deadlines to provide Plaintiff with time to engage in limited and focused discovery. Plaintiff has collectively attached hereto as Exhibit 1 a draft copy of the discovery that he seeks. As the Court will see, the discovery is very narrow and it is in the interest of judicial economy to have these matters investigated for use at mediation and for all other lawful purposes. Having good cause to extend the Scheduling Deadlines, Plaintiff respectfully requests and Order of this Court modify and extending the Scheduling Deadlines. Argument and Citation to Authority The claims at issue in this adversary proceeding, specifically those related to the distribution of the insurance proceeds identified in Section C of Plaintiff s Amended Complaint (Doc. 18, have developed based on facts revealed in Debtor s bankruptcy. Plaintiff filed their Amended Complaint on July 8, 2014 adding a claim to recover one-half of the fraudulently transferred insurance proceeds received by Defendant from Great Northern Insurance Company ( GNIC as a result of a purported burglary of Defendant and Debtor s residence

3 Document Page 3 of 8 that occurred in See Amended Complaint (Doc. 18, pp Both Debtor and Defendant are listed on GNIC s insurance policy yet Debtor has asserted in his bankruptcy and Defendant contends in her Answer (Doc. 20 that she was entitled to receive all of the insurance proceeds because she was the title owner to all of the personal property that was allegedly stolen. The basis for her position is founded on a Second Amendment to Prenuptial Agreement purportedly dated July 22, 2005 ( Purported Agreement in which Debtor conveys all of his interest in said personal property to Defendant. Plaintiff has reason to believe that based upon the existence of other back-dated documents in the record, the Purported Agreement may be fraudulent as well. See Amended Complaint, pp Moreover, Plaintiff has reason to believe that Patricia B. Smith, the notary republic who allegedly witnessed the execution of the Purported Agreement in 2005, was not associated with Debtor and/or Defendant until It is Plaintiff s position that the Purported Agreement is instead a fraudulent instrument used to shelter the Debtors property from creditors. As such, Plaintiff is seeking an extension of the discovery deadline to take the deposition of Ms. Smith. Plaintiff is also seeking the s of Debtor which reference, relate to, or evidence any of the claims raised in Plaintiff s Amended Complaint. These communications have not previously been made available to Plaintiff and would not cause Defendant or Debtor any undue burden or delay since they are electronically saved and stored.

4 Document Page 4 of 8 Based on new theories developed in the underlying bankruptcy and this adversary proceeding, Plaintiff has shown good cause to extend the discovery deadlines to allow it to seek and obtain the narrow discovery sought. See, e.g., In re Fleming Companies, Inc., 323 B.R. 144, 150 (Bankr. D. Del ( good cause existed to modify scheduling order when new facts came to light through discovery which were relevant to the claims at issue therein; Allstate Ins. Co. v. Regions Bank, CIV.A WS-C, 2014 WL (S.D. Ala. Aug. 19, 2014 ( It cannot reasonably be disputed that newly discovered evidence can supply the necessary good cause under Rule 16(b(4.. Additionally, the cases cited by Defendant, Rowell v. Metro. Life Ins. Co., , 2014 WL (11th Cir. Sept. 4, 2014 (hereinafter Rowell and Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218 (11th Cir (hereinafter Oravec are readily distinguishable from the facts at hand herein. For instance, in Rowell, the party moving to extend the discovery deadline had previously sought and received two prior extensions from the Court. Rowell at *1. Alternatively, Plaintiff s Motion is the first time that either party has moved this Court for an extension of Scheduling Deadlines. Moreover, Defendant s reliance on Oravec is misleading as the movant in that case was seeking to amend his complaint one year after the deadline for amending pleadings had passed. Oravec at Unlike the movant in Oravec, Plaintiff sought an extension of the

5 Document Page 5 of 8 Scheduling Deadlines prior to the passing of those deadlines and said Motion is timely pursuant to Local Rules 26.2, 39.5 and Finally, Defendant s whole Response is premised on the prejudice it would suffer based on the delay and prolonging discovery and resolution of this matter. See Response (Doc. 29, p. 3. Any delay, without more, is not sufficient grounds to deny Plaintiff s Motion. See, e.g. Watt v. All Clear Bus. Solutions, LLC, 840 F. Supp. 2d 324 (D.D.C ( Good cause warranted limited reopening of discovery despite movant s failure to exercise diligence where no trial date had been set and non-movant failed to describe any significant prejudice it would suffer from limited reopening of discovery.; In re Christou, MHM, 2008 WL (Bankr. N.D. Ga. Nov. 30, 2008 (re-opening discovery period in adversary proceeding was proper where non-movant provided no specific evidence of prejudice except the mere passage of time. Finally, the parties have sought the services of Judge Bonapfel as a mediator in this case. However, he will not be available until January 2015 at the earliest, and based on his knowledge of the parties and underlying subject matter, Plaintiff believes it is in all of the parties best interest to have Mr. Bonapfel mediate the case. As such, there would be no prejudice or delay in allowing Plaintiff the opportunity to engage in limited discovery in the near future in anticipation of that mediation date. Based upon the existence of new evidence that could support

6 Document Page 6 of 8 Plaintiff s claims and based on the lack of prejudice that Defendant would suffer if the Scheduling Deadline were extended, Plaintiff has shown the requisite good cause necessary to obtain an extension of the Scheduling Deadlines to engage in the narrow discovery sought. WHEREFORE, Plaintiff requests that the Court enter an Order modifying the Scheduling Deadlines to the Proposed Scheduling Deadlines set forth in his Motion. Respectfully submitted this 27th day of October, Schulten Ward & Turner, LLP 260 Peachtree St., NW Suite 2700 Atlanta, GA ( /s/martha A. Miller Martha A. Miller Ga. Bar No Attorney for Plaintiff

7 Document Page 7 of 8 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN RE: MICHAEL TODD CHRISLEY, Chapter 7 Case No MGD Debtor. JASON L. PETTIE, CHAPTER 7 TRUSTEE FOR THE ESTATE OF MICHAEL TODD CHRISLEY, Adversary Proceeding No.: MGD Plaintiff, v. JULIE HUGHES CHRISLEY, Defendant. CERTIFICATE OF SERVICE I hereby certify that I have this day served all interested parties in the above captioned matter with a copy of the foregoing PLAINTIFF S REPLY BRIEF IN SUPPORT OF HIS MOTION TO MODIFY SCHEDULING ORDER TO EXTEND DEADLINES by depositing in the United States first-class mail a copy of same in a properly addressed envelope with sufficient postage affixed thereon, addressed as follows: Leon S. Jones Jones & Walden, LLC 21 Eighth St., NE Atlanta, GA Office of the United States Trustee 362 Richard Russell Building 75 Spring Street, SW Atlanta, GA [signature on next page]

8 Document Page 8 of 8 This 27 th day of October, SCHULTEN WARD & TURNER, LLP 260 Peachtree Street, NW Suite 2700 Atlanta, GA ( mam@swtlaw.com /s/martha A. Miller Martha A. Miller Ga. Bar No Attorney for Plaintiff