Theokary v. Shay et al

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF PENNSYLVANIA
IN RE: : Chapter 7
:
RAFAIL THEOKARY, :
:
Debtor : Bky. No. 07-11008ELF
:
:
RAFAIL THEOKARY, :
:
Plaintiff :
:
v. :
:
ERIC ABBATIELLO, et al., : Adv. No. 09-051
:
Defendants :
O R D E R
AND NOW, upon consideration of the following motions (collectively, “the Motions”)
the parties have filed since the September 10, 2009 final pretrial conference:
A. Defendant Showplace Farms’ Motion to Dismiss and for Sanctions (Docket Entry
No. 91);
B. Defendant Gaitway Farm, Inc.’s Motion to Dismiss and for Sanctions (Docket
Entry No. 92);
C. Defendants Eric Abbatiello, Gaitway Farm, Inc.,Tom Shay and Showplace Farms’
Motion to Strike Documents Plaintiff Filed Pro Se and for Sanctions (Docket
Entry No. 97);
D. Defendants Eric Abbatiello, Gaitway Farm, Inc., Tom Shay and Showplace
Farms’ Motion to Schedule a Perjury Hearing for Plaintiff Rafail Theokary
(Docket Entry No. 104); and
E. Plaintiff’s Motion to Strike Defendant Showplace Farms’ Memorandum in
Support of Its Motion for Dismissal (Docket Entry No. 105);
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It is hereby ORDERED that the Motions are DENIED.1
Date: October 12, 2009
ERIC L. FRANK
U.S. BANKRUPTCY JUDGE
In this litigation, counsel for both sides have shown a pervasive and disturbing inability1
to comply with this court’s local rules, which set out the basic procedural requirements for motion
practice, see, e.g., Docket Entry Nos. 33, 94, 104, 105, and have expended needless time and expense
filing various defective motions. In particular, I have previously denied four dispositive motions filed by
the parties (two (2) by each side), sometimes on procedural grounds, sometimes on the merits. See
Docket Entry Nos. 10, 34; id. Nos. 32, 39; id. 42, 56; id. Nos. 57, 78.
Nevertheless, at the final pretrial conference on September 10, 2009, after reviewing the
Joint Pre-Trial Statement and considering the statements of counsel regarding the evidence expected to
be presented at trial, I concluded that it would be in the interests of justice to give Defendants Gaitway
Farm, Inc. and Showplace Farms one last opportunity to request dismissal of the Plaintiff’s claims and to
avoid the potentially needless expense of trial.
The September 10 Order granting Defendants Gaitway and Showplace leave to file	th
motions for summary judgment has spawned a series of additional, procedurally irregular motions. See
Docket Entry Nos. 97, 104, 105. These motions are being denied for failure to comply with the rules of
court. They should not be refiled prior to trial.
As for the merits of the two (2) motions to dismiss authorized by the September 10th
Order, the Plaintiff has come forward with some evidence to suggest that each of these defendants either
participated in some manner in the post-petition lien sale of the property at issue in this dispute or
otherwise deprived the Debtor of possession of the horses while the automatic stay was in effect. These
factual issues will have to be vetted at trial.
2
Case 09-00051-elf Doc 106 Filed 10/12/09 Entered 10/13/09 11:39:24 Desc Main
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