Beville v. Taylor Wharton Cryogenics LLC et al

Filing 66

Order dismissing without prejudice this action as to the debtor defendant. Signed by District Judge William H. Steele on 4/17/2017. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THERESA A. BEVILLE,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 15-0560-WS-C
)
TAYLOR WHARTON CRYOGENICS,)
LLC, et al.,
)
)
Defendants.
)
ORDER
In May 2016, the plaintiff notified the Court that she would not seek relief
from the automatic stay but would instead prosecute her claim against the debtor
defendant in Bankruptcy Court. (Doc. 42 at 1). She appended to her notice her
proof of claim. (Doc. 42-1). The Court recently ordered the plaintiff to show
cause why, in light of these circumstances, her action as to the debtor defendant
should not be dismissed without prejudice. (Doc. 64). The plaintiff elected to
stand silent.
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 nonapplication 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 Those purposes would not be
adversely affected by a dismissal of this action.
The plaintiff previously indicated a desire to “preserve the right to a trial by
jury in the pending District Court action at the conclusion of the Bankruptcy”
proceedings. (Doc. 42 at 2). By declining to respond to the Court’s show-cause
order, the plaintiff has failed to confirm that she retains this desire. In any event,
the plaintiff has not explained how she could later pursue this employment
discrimination action after the bankruptcy proceedings are concluded. The
debtor’s plan of liquidation went into effect in November 2016, so a dismissal of
the bankruptcy proceedings without a final resolution appears unlikely. That final
resolution presumably will include an order discharging all dischargeable debts of
the debtor, and the plaintiff has not indicated that her claim is, will be or could be
subject to any exception to discharge.
For the reasons set forth above, this action as to the debtor defendant is
dismissed without prejudice.
DONE and ORDERED this 17th day of April, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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 under Rule 41(b) for failure to prosecute); Arnold v. Garlock, Inc., 288 F.3d 234,
236-37 (5th Cir. 2002) (upholding dismissal of creditor’s action under Rule 41(a)); 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).

2