High Standard Mfg Co v. Stoeger Industries ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-21087
Summary Calendar
HIGH STANDARD MANUFACTURING COMPANY, INC.,
Plaintiff-Appellant,
VERSUS
STOEGER INDUSTRIES; ARMAS INTERNATIONAL MANUFACTURING, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-2315)
July 23, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
High Standard Manufacturing Company, Inc. (“High Standard”)
appeals the dismissal of its trade dress infringement suit against
Stoeger Industries, Inc. (“Stoeger”) and Armas International
Manufacturing, Inc. (“Armas”) for want of prosecution. We affirm.
The district court’s dismissal for want of prosecution is
reviewed for abuse of discretion. See Morris v. Ocean Systems,
Inc., 730 F.2d 248, 251 (5th Cir. 1984); see also Truck Treads,
Inc. v. Armstrong Rubber Co., 818 F.2d 427, 429 (5th Cir. 1987).
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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High Standard’s first point of error characterizes the
dismissal as a sanction for delay or contumacious conduct pursuant
to Federal Rule of Civil Procedure 37, although the district court
denominated its decision as a dismissal for failure to prosecute.
See FED. R. CIV. P. 41. Assuming, without deciding, that the
dismissal was imposed as a sanction, the record clearly supports
findings 1) of delay or contumacious conduct by High Standard, and
2) that lesser sanctions would not serve the best interests of
justice. See Morris, 730 F.2d at 252. Further, the record
supports a conclusion that High Standard, as distinguished from
counsel, was responsible for the lengthy delay in producing
financial records which the court ordered the parties to exchange.
See id. We therefore conclude that the district court did not
abuse its discretion in dismissing this case.
In its second point of error, High Standard contends that from
September 3, 1998 until October 16, 1998 (the date that the
district court ordered final judgment dismissing this case) it was
precluded from prosecuting its case by the automatic stay
occasioned by Armas’s filing of a Chapter 11 bankruptcy proceeding.
The automatic stay provision of the Bankruptcy Code, 11 U.S.C. §
362(a)(1), does not apply to the claims between Plaintiff and the
non-debtor co-defendant, see Marcus, Stowell & Beyers v. Jefferson
Investment Corp., 797 F.2d 227 (5th Cir. 1986), or to Armas’s
counterclaims. See Matter of U.S. Abatement Corp., 39 F.3d 563
(5th Cir. 1994). Further, the district court rejected High
Standard’s reliance on the bankruptcy stay to excuse its failure to
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prosecute, stating “You cannot use Armas’s bankruptcy as a defense
when you have gone in and gummed up the works so it wasn’t
dismissed before the hearing.” We find no abuse of discretion in
dismissing this case for want of prosecution.
Based on the foregoing, we affirm the district court’s order
dismissing this case.
AFFIRMED.
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