Trustmark National Bank v. Molleston et al

Filing 45

ORDER as to Doc. 43 Response construed as a Motion to Dismiss pursuant to Rule41(a)(2)stating since such a dismissal is not prohibited by Section 362, the motion is granted. This action as to defendant Michael C. Molleston is dismissed without prejudice. Signed by Chief Judge William H. Steele on 5/12/2011. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TRUSTMARK NATIONAL BANK,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 10-0702-WS-M
)
MICHAEL C. MOLLESTON, etc., et al., )
)
Defendants.
)
ORDER
This action as against defendant Michael C. Molleston is subject to the automatic
stay imposed by 11 U.S.C. § 362(a). The plaintiff reports that it does not expect to seek
relief from the stay and that it knows of no reason the action as to Molleston should not
be dismissed without prejudice. (Docs. 43, 44).
The filing of a bankruptcy petition generally “operates as a stay, applicable to all
entities, of ... the commencement or continuation, including the issuance or employment
of process, of a judicial, administrative or other action or proceeding against the debtor
....” 11 U.S.C. § 362(a). However, “the application or non-application of § 362(a) to the
dismissal of an action pending against a debtor should be made consistent with the
purposes of the statute.” Independent Union of Flight Attendants v. Pan American World
Airways, Inc., 966 F.2d 457, 459 (9th Cir. 1992). The twin purposes of the automatic stay
are to give the debtor a breathing spell from its creditors and to protect creditors from the
actions of other creditors. Id. When neither purpose is imperiled, Section 362(a) does
not preclude dismissal. Id. Appellate courts have frequently approved dismissals that do

not implicate the purposes of the automatic stay.1 In particular, “[t]he district courts ...

1

See id. (granting the creditor’s motion to dismiss its appeal as moot); O’Donnell v.
Vencor, Inc., 466 F.3d 1104, 1108-09 (9th Cir. 2006) (upholding dismissal of creditor’s action
(Continued)
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were similarly entitled to dismiss the debtor on the plaintiffs’ motions [under Rule 41(a)]
as a matter consistent with the terms of § 362(a) and the effective management of their
dockets.” Arnold v. Garlock, Inc., 288 F.3d 234, 236-37 (5th Cir. 2002).
The Court construes the plaintiff’s filing as a motion to dismiss pursuant to Rule
41(a)(2). Since such a dismissal is not prohibited by Section 362, the motion is granted.
This action as to defendant Michael C. Molleston is dismissed without prejudice.
DONE and ORDERED this 12th day of May, 2011.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

under Rule 41(b) for failure to prosecute); Dennis v. A.H. Robins Co., 860 F.2d 871, 872 (8th Cir.
1988) (upholding dismissal of creditor=s action under Rule 41(b) for failure to comply with court
orders); Wachter v. Lezdey, 34 Fed. Appx. 699, 701-02 (Fed. Cir. 2002) (dismissing creditor’s
appeal for lack of jurisdiction).

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