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| November/December 2024 | BAEC Bulletin
BAEC Bulletin | November/December 2024 |
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tial interests in the debtor, resulting in the law firm’s dis- qualification. The Bankruptcy Court issued a new deadline for debtor to retain counsel, but the debtor again failed to do so, causing the trustee to move, pursuant to 11 U.S.C. §1112(b)(1), to convert the bankruptcy proceeding to one under Chapter 7 or to dismiss it altogether. The Bankrupt- cy Court concluded that dismissal, rather than conversion, was in the best interest of the creditors and the estate. On appeal, the District Court vacated the order dismissing the proceeding, and remanded for further proceeding. In the District Court’s view, §1112(b)(1) presented the Bankruptcy Court with three alternatives: it could dismiss the case, con- vert the case to one under Chapter 7, or appoint a Chapter 11 trustee. Because the statute mandated the appointment of a Chapter 11 trustee and precluded dismissal or conver- sion when it was in the best interest of the creditors and the estate, a bankruptcy court had an independent obli- gation to consider appointment of the trustee. Thus, the Bankruptcy Court had abused its discretion when it failed to consider whether appointment of a Chapter 11 trustee was in the best interest of the creditors and estate, notwith- standing that defendant had not filed a motion seeking that relief. While Rule 2007.1(a) required such a motion to ap- point a trustee under §1104(a), the District Court concluded that rule did not apply to the independent analysis required when considering a motion to dismiss, convert, or appoint under §1112(b)(1). Discovery Stays Pending Summary Judgment Motions In Short v. City of Rochester, 22-cv-6263-EAW-MJP (Aug. 30, 2024), defendant moved to stay discovery pending the determination of its motion for summary judgment, which sought dismissal of plaintiffs’ entire complaint. Noting first that courts may stay discovery pending the outcome of a dispositive motion, the Court also observed that “the Federal Rules do not gift any defendant an automatic stay merely because the defendant files a dispositive motion.”
Instead, the Federal Rules entrust the Court with the discretion to determine if a stay is warranted. That discretion “should be exercised carefully and only after looking to the particular circumstances and posture of the case.” Moreover, notwithstanding the Court’s dis- cretion, the moving party must first show good cause, and must then prevail on the factors that courts evaluate when determining whether to stay discovery pending the outcome of a dispositive motion—i.e. (1) the breadth of discovery sought; (2) any prejudice that would result; and (3) the strength of the motion. Applying the test, the Court found that defendant established good cause for a stay because if defendant’s motion succeeds, whether partially or entirely, the parties could avoid substantial burden and the waste of precious resources. The Court then declined to consider the “strength of the motion” factor in depth, but found that it was satisfied, noting that defendant’s summary judgment motion “may shape the number and nature of the claims going forward in a manner that could significantly impact the breadth of dis- covery.” The Court also found that, absent a stay, defen- dant faced the prospect of electronic discovery, includ- ing sifting through thousands, if not tens or hundreds of thousands, of email from numerous custodians, so the “breadth” factor favored a stay. Finally, while observing that some prejudice to plaintiffs is inherent in any delay, such delay alone is insufficient to prevent a stay, other- wise stays of discovery would never be granted. And because defendant is a municipal entity that provides public services, compliance with discovery in the current posture of the case would result in a substantial diver- sion of public resources which may ultimately not be necessary. As a result, the Court granted defendant’s motion and stayed discovery pending the determination of defendant’s motion for summary judgment.
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Criminal Panel Updates The October 2024 New/Misdemeanor Attorney Training is full. We are accepting names for the February 2025 Training Class; please sign up at https://www.assigned.org/join-our-panel/ This training is required for all new criminal panelists. The ACP Criminal Deputy staff will cover an orientation of our program together with nuts-and- bolts training on criminal defense practice. At the conclusion, each trainee’s mock trial is scheduled. Here are upcoming Criminal practice CLEs (free for panel members): 10/15/24: Criminal Immigration Update 11/12/24: Sex Offender Registration Act (SORA) Practice December TBD: CPL 730 Practice February TBD: New Felony Attorney Training February 12th, 2025: The Business of Law Practice (all day, in-person; Lincoln’s Birthday – Courts are closed) Family Court Panel Update We are accepting names for the Fall 2024 Training Classes; please sign up at https://www.assigned.org/join-our- panel/ This training is required for all new Family Court panelists. The ACP Family Court Deputy staff will cover an orientation of our program together with nuts-and-bolts training on Family Court civil practice. This is the Training schedule for new Family Court panel attorneys (all on Monday evenings from 5 to 7 pm): 10/7/24 – Welcome to ACP 10/21/24 – Everything Petition 11/4/24 – Preliminary Procedure: Use of Social Workers, mediation, AFCs, the art of negotiation 11/18/24 & 12/2/24 - Discovery: Motions & Devices 12/16/24 – Trial Preparation 1/6/25 – Custody 1/27/25 – Family Offenses 2/10/25 – Support Violations/Paternity 2/24/25 – The Basics of Article 10 (abuse/neglect)
Erie County Bar Association Aid to Indigent Prisoners Society, Inc Assigned Counsel Program The Brisbane Building 403 Main Street, Suite 215 Buffalo, NY 14203 Phone: 716.856.8804 Fax: 716.856.0424 Website: www.assigned.org
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