Kimbrell v. Brown

Summarized by Kurt Carlson , Carlson Dash LLC
14 years 7 months ago

Citation:

(7th Circuit, Dec 31,1969)

Tag(s):

7th Circuit

Ruling:

Seventh Circuit Court of Appeals holds that it lacks jurisdiction on an appeal of district court's dismissal of claims against one defendant, where claims against another defendant were subject of a stay by virtue of 11 U.S.C. 362 (a)(1), and therefore not a final judgment as plaintiff continued to seek adjudication of claims against bankrupt defendant.

Procedural context:

Plaintiff sued two defendants, one of which had filed a bankrutpcy petition prior to the suit having been commenced and before the defendant was ever served. The district court did stay the proceedings as to the bankrupt defendant pursuant to 11 U.S.C. 362 (a)(1), and later dismissed the claims against the non-bankrupt defendant for failure to exercise reasonalbe diligence in serving process under Illinois Supreme Court Rule 103(b). Plaintiff took steps to seek relief from the stay, with respect to the bankrupt defendant, while simultaneously taking the position with the Seventh Circuit, during oral argument, that the suit against the bankrutpcy defendant was void ab initio as a means of having the appellate court take jurisdiction over the case.

Facts:

The Seventh Circuit Court of Appeals noted the contradictory positions of plaintiff, on one hand arguing its case against the bankrupt defendant was void ab initio, and on the other hand noting that the plaintiff sought and obtained relief from the automatic stay and, in fact, filed a new suit against the bankrupt defendant thereafter, but did not bring that fact to the attention of the Seventh Circuit on appeal or the prior district court judge below. Finding that the plaintiff's claims against the bankruptcy defendant were still being pursued, the Court found that there existed no final judgment from which an appeal could be taken.

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