Pope v. Manville Forest Products Corp., 85-4397

• Decision Date: 12 December 1985
• Docket Number: No. 85-4397,85-4397
• Citation: 778 F.2d 238
• Parties: 39 Fair Empl.Prac.Cas. 982, 38 Empl. Prac. Dec. P 35,800, 13 Bankr.Ct.Dec. 1390, Bankr. L. Rep. P 70,888 Linda POPE, Plaintiff-Appellant, v. MANVILLE FOREST PRODUCTS CORPORATION, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 238

778 F.2d 238

39 Fair Empl.Prac.Cas. 982,

38 Empl. Prac. Dec. P 35,800, 13 Bankr.Ct.Dec. 1390,

Bankr. L. Rep. P 70,888

Linda POPE, Plaintiff-Appellant, v. MANVILLE FOREST PRODUCTS CORPORATION, Defendant-Appellant.

No. 85-4397

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 12, 1985.

Gerard N. Torry, Opelousas, La., for plaintiff-appellant.

Lang, Simpson, Robinson & Somerville, Peyton Lacy, Jr., Birmingham, Ala., and John J. Hemrick, Gen. Atty., Manville Forest Products Corp., W. Monroe, La., for defendant-appellant.

Appeal from the United States District Court for the Western District of Louisiana; F.A. Little, Jr., District Judge, Presiding.

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

OPINION

E. GRADY JOLLY, Circuit Judge:

The plaintiff, Linda Pope, appeals the district court's judgment which dismissed her Title VII claim on grounds of res judicata after a bankruptcy court heard the matter and allowed no damages.

She initially filed this action against Manville in the Western District of Louisiana, but the district court action was automatically stayed after Manville filed Chapter 11 proceedings. 11 U.S.C. Sec. 362, in the Bankruptcy Court of the Southern District of New York. The bankruptcy court entered a stay order that was filed in the Western District of Louisiana.

Pope filed her claim in the bankruptcy court, but "moved to change the venue" back to the Western District of Louisiana; she also contested the jurisdiction of the bankruptcy court. The bankruptcy court denied the motion to change venue, held that it had jurisdiction, and then proceeded to a hearing. Pope did not appear or otherwise offer any evidence, despite the fact that the court had given notice that it would proceed to a hearing if it denied the motions. The bankruptcy court allowed Pope's claim in the amount of $0. Then the district court in Louisiana, on notice of the bankruptcy court's action, dismissed the suit with prejudice, sua sponte, on the grounds of res judicata. Pope now appeals the dismissal of the action by the district court.

Pope ignores the question of res judicata and raises two grounds for appeal. The first is that Title VII actions should not be dischargeable in bankruptcy; the second is that the bankruptcy court should have granted a change of venue. ¹ Manville asserts that the bankruptcy court's determination is res judicata and that the present appeal is an improper collateral attack on that judgment.

We note initially that the Manville bankruptcy proceeding is still pending with no final disposition having been reached. In the light of this fact, we examine whether the district court's ruling was a proper exercise of its authority.

A stay granted against an action in district court continues until the bankruptcy case is closed, dismissed, or discharge is granted or denied, or until the bankruptcy court grants some relief from the stay. 11 U.S.C. Sec. 362(a), (c)(2), (d), (e), (f). None of these events has taken place.

We recognize that the stay, by its statutory words, operates against "the commencement or continuation" of judicial proceedings. No specific reference is made to "dismissal" of judicial proceedings. Nevertheless, it seems to us that ordinarily the stay must be construed to apply to dismissal as well. First, if either of the parties takes any step to obtain dismissal, such...