High Standard Mfg Co v. Stoeger Industries

Opinion

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 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

2 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.