Peterson v. Sears Roebuck & Company

Filing 26

ORDER adopting 24 stipulation of dismissal; and dismissing with prejudice the action, and each party will bears its own costs and fees. Signed by Judge Kristine G. Baker on 12/13/2018. (cmn)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
IDA M. PETERSON
v.

PLAINTIFF
Case No. 5:16-cv-00366 KGB

SEARS, ROEBUCK, AND CO.

DEFENDANT
ORDER

Before the Court is the parties’ joint stipulation of dismissal with prejudice (Dkt. No. 24).
The stipulation accords with the terms of Federal Rule of Civil Procedure 41(a)(1)(A)(ii). The
Court notes that defendant Sears, Roebuck, and Co. filed a voluntary petition for relief under
Chapter 11 of Title 11 of the United States Bankruptcy Code, 11 U.S.C. §§ 101 through 1330, as
amended (Dkt. No. 25). As a dismissal of this action does not require the Court to consider issues
related to the underlying case, the dismissal will not constitute a continuation of the judicial
proceeding and is therefore not barred by the automatic stay. 1 For good cause shown, the Court
adopts the stipulation of dismissal (Id.). The action is dismissed with prejudice, and each party
will bear its own costs and fees.

The Eighth Circuit Court of Appeals has held that the automatic stay does not “preclude
another court from dismissing a case on its docket or to affect the handling of a case in a manner
not inconsistent with the purpose of the automatic stay.” Dennis v. A.H. Robins Co., Inc., 860 F.2d
871, 872 (8th Cir. 1988) (holding that the automatic stay did not prevent a district court from
dismissing a bankrupt plaintiff's action for failure to follow the district court's local rules). Other
courts have held that the automatic stay does not prevent a court from dismissing a case against a
debtor on the motion of the plaintiff pursuant to Federal Rule of Civil Procedure 41(a). See Settles
v. C.I.R., 138 T.C. 372, 376 (T.C. 2012) (holding that dismissal of a bankrupt petitioner’s case
under Rule 41(a) did not violate the automatic stay); Arnold v. Garlock Inc., 288 F.3d 234, 237
(5th Cir. 2002) (same); Slay v. Living Ctrs. E., Inc., 249 B.R. 807 (S.D. Ala. 2000) (same); Chase
Manhattan Bank, N.A. V. Celotex Corp., 852 F. Supp. 226 (S.D.N.Y. 1994) (same).
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So ordered this 13th day of December, 2018.

_______________________________
Kristine G. Baker
United States District Judge

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