Pro Star Logistics v. Bluestem Brands

Filing 19

MEMORANDUM DECISION AND ORDER Dismissing Action. Signed by Judge Jill N. Parrish on 11/18/22. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
PRO STAR LOGISTICS,
Plaintiff,
v.
BLUESTEM BRANDS,
Defendant.

MEMORANDUM DECISION AND ORDER
DISMISSING ACTION
Case No. 2:20-cv-00141-JNP-DAO
District Judge Jill N. Parrish

The court ordered Pro Star Logistics to state whether the automatic bankruptcy stay
remained in effect and, if so, whether the automatic stay prohibited the court from dismissing this
action. The court also ordered Pro Star to show cause why this court should not dismiss this action
for a failure to prosecute. The court gave Pro Star until November 17, 2022 to respond. Pro Star
disregarded the court’s order and failed to file a response.
It is unclear whether the automatic stay has been lifted. But regardless of whether the stay
remains in effect, the court may dismiss this action. The automatic bankruptcy stay prohibits “all
entities” from “the commencement or continuation . . . of a judicial . . . action or proceeding against
the debtor.” 11 U.S.C. § 362(a). Because the dismissal of an action does not constitute the
commencement or continuation of a legal action, the automatic stay does not apply. O’Donnell v.
Vencor Inc., 466 F.3d 1104, 1110 (9th Cir. 2006) (“[T]he dismissal for failure to prosecute was
not void because it did not constitute a ‘continuation’ of a judicial proceeding against the debtor
under 11 U.S.C. § 362(a)(1).”); Dennis v. A.H. Robins Co., 860 F.2d 871, 872 (8th Cir. 1988)

(automatic stay did not prohibit court from dismissing an action against the debtor because the
dismissal was not “inconsistent with the purpose of the automatic stay”).
Because any stay in effect would not preclude dismissal of this action, the court turns to
the matter of Pro Star’s failure to respond to the court’s order. This failure to respond merits
dismissal for two reasons. First, the court dismisses Pro Star’s action for failing to obey the court’s
order to show cause. See FED. R. CIV. P. 16(f)(1), 37(b)(2)(A). Second, Pro Star has indicated that
it has no intent to prosecute this action and has disregarded the court’s order to respond to the order
to show cause. Thus, the court also dismisses this action for failure to prosecute. See DUCivR
41-2. Dismissal is without prejudice.
DATED November 18, 2022.
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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