Opinion

Brown v. Blackstone Consulting Inc

Court
District Court, W.D. Oklahoma
Filed
Mar 22, 2023
Cited by
0 cases
Authority
More cited than 28.6%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.