United States District Court, M.D. Louisiana
PHELPS DUNBAR, L.L.P., ET AL.
RICHARD L. BOURGEOIS, JR. MAGISTRATE JUDGE
the Court is Defendants' Motion for Enlargement of Time
to Answer or Otherwise Respond to Counts 1-3 of the Complaint
(R. Doc. 20) filed on May 31, 2017. The motion is opposed.
(R. Doc. 25). Defendants have filed a Reply. (R. Doc. 32).
before the Court is Defendants' Motion For Protective
Order Staying Initial Disclosures and Discovery Pending
Resolution Of A Ruling On Their Rule 12(b)(6) Motion (R. Doc.
21) filed on May 31, 2017. The motion is opposed. (R. Doc.
24). Defendants have filed a Reply. (R. Doc. 34).
Court will consider these motions together because they
concern related issues.
April 7, 2017, Zloop, Inc., by and through Patrick Trae'
O'Pry, Plan Administrator, (“Plaintiff”)
initiated this action against Phelps Dunbar, L.L.P.
(“Phelps”) and the four individual attorneys
Heather Duplantis, Michael D. Hunt, Kelly Kromer Boudreaux,
and Marc G. Matthews (collectively,
“Defendants”). (R. Doc. 1). Plaintiff
subsequently filed a First Amended Complaint to modify the
caption. (R. Doc. 2).
alleges that Zloop, Inc. “is an inactive Delaware
corporation currently being liquidated pursuant to a Chapter
11 Plan of Liquidation in the United States Bankruptcy Court
for the District of Delaware that was confirmed on October
25, 2016 and which became [e]ffective on December 1,
2016.” (R. Doc. 1 at 1). In short, Plaintiff is seeking
recovery of certain property and fees earned from Phelps in
the course of its earlier representation of Zloop, Inc. and
two of its officers, as well as additional damages as
asserted in the Complaint. Through Count 1 (post-petition
avoidance under 11 U.S.C. § 549 and recovery under 11
U.S.C. § 550), Count 2 (turnover of property of the
estate under 11 U.S.C. § 542), and Count 3 (disgorgement
of fees under 11 U.S.C. §§ 327, 328, 329),
Plaintiff seeks recovery under various sections of the
bankruptcy code. (R. Doc. 1 at 43-48). Through Count 4 (legal
malpractice), Count 5 (breach of fiduciary duty), and Count 6
(aiding and abetting breach of fiduciary duty), Plaintiff
seeks damages under Louisiana and Delaware law. (R. Doc. 1 at
5, 2017, Defendants filed an Ex Parte Motion for Extension of
Time to Answer or Otherwise Plead (R. Doc. 14) pursuant to
Local Rule 7. The Court granted the motion, extending the
deadline for Defendants to file an answer or responsive
pleading to June 1, 2017. (R. Doc. 17).
31, 2017, Defendants filed a Motion to Dismiss Counts 4-6 of
the Complaint. (R. Doc. 19).
same day, Defendants filed the instant motions. (R. Doc. 20;
R. Doc. 21). In their first motion, Defendants seek an
enlargement of time to answer or otherwise respond to Counts
1-3 of the Complaint until 14 days after notice of the
Court's action on the Motion to Dismiss Counts 4-6 of the
Complaint. (R. Doc. 20). In their second motion, Defendants
seek a protective order staying all discovery in the instant
action until the Court rules on the Motion to Dismiss Counts
4-6 of the Complaint. (R. Doc. 21).
light of Defendants' motion for a protective order
staying all discovery, the Court cancelled its scheduling
conference set for June 29, 2017, and informed the parties
that it would set a new date for the scheduling conference
after it ruled on that pending motion. (R. Doc. 33).
Law and Analysis
Court first turns to Defendants' Motion for Enlargement
of Time to Answer or Otherwise Respond to Counts 1-3 of the
Complaint (R. Doc. 20)
12(a)(4) allows a defendant to file a motion to dismiss and
await its disposition before filing an answer by extending
the deadline to serve an answer or responsive pleadings until
14 days after notice of the Court's denial of the motion
to dismiss, or postponement of ruling until trial.
Fed.R.Civ.P. 12(a)(4). Rule 12(a)(4) does not, however,
explicitly provide whether a partial motion to dismiss
extends the ...