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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
IN RE: MICHAEL TODD CHRISLEY,
)
)
)
Debtor.
)
)
)
JASON L. PETTIE, CHAPTER 7
)
TRUSTEE FOR THE ESTATE OF
)
MICHAEL TODD CHRISLEY,
)
)
Plaintiff,
)
v.
)
)
JULIE HUGHES CHRISLEY,
)
)
Defendant.
)
___________________________________ )
Chapter 7
Case No. 13-56132-MGD
Adversary Proceeding No.:
14-05037-MGD
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
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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
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that occurred in 2010. See Amended Complaint (Doc. 18), pp. 7-12. 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. 3-7. 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 2007.
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 emails 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.
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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. 2005) (“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. 14-0067-WS-C, 2014 WL 4162264 (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.,
13-15749, 2014 WL 4357483 (11th Cir. Sept. 4, 2014) (hereinafter “Rowell”) and
Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218 (11th Cir. 2008)
(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 1232.
Unlike the movant in Oravec, Plaintiff sought an extension of the
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Scheduling Deadlines prior to the passing of those deadlines and said Motion is
timely pursuant to Local Rules 26.2, 39.5 and 56.1. 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.
2012) (“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, 06-68251-MHM, 2008 WL 7880888 (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
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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, 2014.
/s/Martha A. Miller
Martha A. Miller
Ga. Bar No. 507950
Attorney for Plaintiff
Schulten Ward & Turner, LLP
260 Peachtree St., NW
Suite 2700
Atlanta, GA 30303
(404) 688-6800
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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
IN RE: MICHAEL TODD CHRISLEY,
)
)
)
Debtor.
)
)
)
JASON L. PETTIE, CHAPTER 7
)
TRUSTEE FOR THE ESTATE OF
)
MICHAEL TODD CHRISLEY,
)
)
Plaintiff,
)
v.
)
)
JULIE HUGHES CHRISLEY,
)
)
Defendant.
)
___________________________________ )
Chapter 7
Case No. 13-56132-MGD
Adversary Proceeding No.:
14-05037-MGD
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 30309
Office of the United States Trustee
362 Richard Russell Building
75 Spring Street, SW
Atlanta, GA 30303
[signature on next page]
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This 27th day of October, 2014.
/s/Martha A. Miller
Martha A. Miller
Ga. Bar No. 507950
Attorney for Plaintiff
SCHULTEN WARD & TURNER, LLP
260 Peachtree Street, NW
Suite 2700
Atlanta, GA 30303
(404) 688-6800
[email protected]
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