The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ROBERT BROWN, an Individual, )
)
Plaintiff, )
)
v. ) No. CIV-21-353-R
)
BLACKSTONE CONSULTING, INC., )
a Foreign Corporation, )
)
Defendant. )
ORDER
Before the Court is Defendant Blackstone Consulting, Inc.’s (“Blackstone’s”)
Motion for Discovery Orders and Suggested Plan on How to Proceed (Doc. No. 61),
Plaintiff Robert Brown’s Response (Doc. No. 68), and Defendant’s Reply (Doc. No. 71).
In light of Plaintiff’s Chapter 7 Bankruptcy filing on January 22, 2023, in the United States
Bankruptcy Court for the Western District of Oklahoma (Doc. No. 66), the Court is tasked
with determining how this action should proceed.1
This case arises out of a dispute involving a contract for food service operations at
Fort Sill, an Army Post located in Lawton, Oklahoma. In a related case, Cantu Services,
Inc. (“Cantu”) obtained a judgment against Brown and Blackstone on January 14, 2020.
Plaintiff filed this case in April 2021 seeking to be indemnified by Defendant. On October
28, 2022, Cantu filed an Amended Release and Satisfaction of Judgment for the Judgment
against Plaintiff Brown in Cantu Services, Inc. v. Robert Brown, No: CIV-15-1210-G
1 See U.S. Bankruptcy Court for the Western District of Oklahoma Bankruptcy Petition
No: 23-10118.
(W.D. Okla. filed Oct. 28, 2015) stating that “[t]he Judgment has been fully satisfied.”
(Doc. No. 54-2). The parties agree that Plaintiff’s only remaining damages in this case are
his attorneys’ fees for prosecution of this case. (Doc. Nos. 61, at 2; 68, at 3-4).
Plaintiff has failed to meet multiple discovery deadlines in this matter. Despite a
ten-day extension agreed upon by the parties, Plaintiff has still not responded to a discovery
request for admissions, interrogatories, and production served by Defendant on December
7, 2022, weeks before Plaintiff’s bankruptcy filing. (Doc. No. 61). To date, Plaintiff has
not filed a list of expert witnesses or submitted expert reports which were due by January
30, 2023, pursuant to the Scheduling Order (Doc. No. 53). Plaintiff has also neglected to
file a final list of witnesses and final exhibit list which were due on February 13, 2023.
(See Doc. No. 53). Plaintiff’s counsel asserts that he has had difficulty meeting discovery
deadlines because of “complications outside the control of counsel.” (Doc. No. 68, at 3).
Still, he claims that these delays have not prejudiced Defendant because “[t]he case is not
currently set for trial.” (Doc. No. 68, at 3). This case, however, is set for trial in May 2023.
(Doc. No. 53).
On March 16, 2023, a telephonic status conference was held wherein Plaintiff’s
counsel argued that the case should be automatically stayed due to Plaintiff’s bankruptcy
filing. (See also Doc. No. 69) (Plaintiff suggesting that this case is automatically stayed
pursuant to 11 U.S.C. § 362(a)). However, because Plaintiff is the party who filed for
bankruptcy, the automatic stay under 11 U.S.C. § 362 is inapplicable because (1) Plaintiff
“can continue to pursue [his] claims against another party even after filing for bankruptcy
protection” and (2) “an attempt to dismiss or defeat a debtor's lawsuit is not an act to obtain
possession or exercise control over property of the debtor's estate.” Riviera Drilling & Expl.
Co. v. Gunnison Energy Corp., 412 F. App'x 89, 95 (10th Cir. 2011). Thus, this case is not
automatically stayed under § 362.
Defendant requests that the Court dismiss this action due to Plaintiff’s failures to
timely comply with multiple discovery deadlines. (Doc. Nos. 61, at 2; 71, at 3). “A district
court undoubtedly has discretion to sanction a party for failing to prosecute or defend a
case, or for failing to comply with local or federal procedural rules.” Reed v. Nellcor
Puritan Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Dismissal, however, is “an extreme
sanction appropriate only in cases of willful misconduct.” Ehrenhaus v. Reynolds, 965 F.2d
916, 920 (10th Cir. 1992). The Court considers the following factors when considering
whether dismissal is an appropriate sanction: (1) the degree of actual prejudice to the
opposing party; (2) the degree of interference with the judicial process; (3) the litigant's
culpability; (4) whether the litigant was warned in advance that dismissal was a likely
sanction; and (5) whether a lesser sanction would be effective. Id. at 921.
Here, the Court finds that Defendant has been subjected to actual prejudice as it has
been forced to comply with several scheduling deadlines despite Plaintiff’s failures to
respond to discovery requests and comply with the Scheduling Order. Plaintiff’s failure to
prosecute the case has interfered with the judicial process as this case is scheduled for trial
in May 2023 and Defendant has yet to receive responses to its discovery requests. Plaintiff
is culpable for these failures as he has not only neglected to file a list of expert witnesses,
lay witnesses, exhibits, or submit expert reports, he has also failed to respond to discovery
requests which were due prior to Plaintiff’s bankruptcy filing. Although Plaintiff was not
warned that dismissal was a likely sanction, the Court finds that a lesser sanction would be
ineffective in this matter.
Accordingly, based on Plaintiff's failure to prosecute this case, the Court GRANTS
Defendant’s Motion (Doc. No. 61) and DISMISSES this action WITHOUT PREJUDICE.
IT IS SO ORDERED this 22 day of March 2023.
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE