In re: Robert Norik Kitay and Tristina Coffin Kitay ( 2015 )

  •                                                                FILED
                                                                    DEC 10 2015
     1                          NOT FOR PUBLICATION
                                                                SUSAN M. SPRAUL, CLERK
                                                                  U.S. BKCY. APP. PANEL
     2                                                            OF THE NINTH CIRCUIT
     4                            OF THE NINTH CIRCUIT
     5   In re:                        )       BAP No.      EC-14-1200-FDJu
     6   ROBERT NORIK KITAY and        )       Bk. No.      13-20645
         TRISTINA COFFIN KITAY,        )
     7                                 )       Adv. Pro. 13-02126
                        Debtors.       )
     8   ______________________________)
     9   DANIEL E. GONZALEZ,           )
    10                  Appellant,     )
    11   v.                            )       MEMORANDUM*
    12   ROBERT NORIK KITAY;           )
    14                  Appellees.     )
                        Argued and Submitted on November 19, 2015
    16                          at Sacramento, California
    17                          Filed – December 10, 2015
    18            Appeal from the United States Bankruptcy Court
                      for the Eastern District of California
              Honorable Thomas C. Holman, Bankruptcy Judge, Presiding
    21   Appearances:      Appellant Daniel E. Gonzalez argued pro se.
         Before: FARIS, DUNN, and JURY, Bankruptcy Judges.
    26        *
                This disposition is not appropriate for publication.
    27   Although it may be cited for whatever persuasive value it may
         have (see Fed. R. App. P. 32.1), it has no precedential value.
    28   See 9th Cir. BAP Rule 8024-1.
     1                              INTRODUCTION
     2        Appellant Daniel E. Gonzalez appeals from the bankruptcy
     3   court’s order granting in part and denying in part Appellees
     4   Robert Norik Kitay’s and Tristina Coffin Kitay’s1 motion to set
     5   aside default.   We hold that the bankruptcy court did not err in
     6   granting Mr. Gonzalez default judgment against Mr. Kitay in the
     7   amount of $5,000 as a nondischargeable debt pursuant to 11 U.S.C.
     8   § 523(a)(4)2 and dismissing the remainder of Mr. Gonzalez’s
     9   claims.   Accordingly, we AFFIRM.
    10                           FACTUAL BACKGROUND
    11        Beginning in January 2010, Mr. Gonzalez retained Mr. Kitay,
    12   an attorney, to represent him and his daughter, Christina, in
    13   numerous state court actions.   Those cases involved an automobile
    14   accident, alleged wrongful foreclosure, and a probate collection
    15   matter.   Mr. Gonzalez alleged that, during the course of his
    16   representation, “Mr. Kitay committed professional negligence,
    17   fraudulent concealments, and misrepresentations.”   Mr. Kitay
    18   responded in kind, claiming that Mr. Gonzalez engaged in “several
    19   acts of fraud and dishonesty . . . , all of which led me to sever
    20   all ties with Mr. Gonzalez as a client . . . .   Over time, it
    21   became clear that all his personal cases that he brought to me
    22   presented multiple acts of fraud, dishonesty, and a complete lack
    24        1
                The Kitays did not file an answering brief or otherwise
         make an appearance in this appeal.
    26          Unless specified otherwise, all chapter and section
         references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all
    27   “Rule” references are to the Federal Rules of Bankruptcy
         Procedure, Rules 1001-9037, and all “Civil Rule” references are
    28   to the Federal Rules of Civil Procedure, Rules 1-86.
     1   of ethics or morality.”3
     2        On October 29, 2012, Mr. Gonzalez filed a complaint against
     3   Mr. Kitay in the Superior Court of California, County of
     4   Sacramento (“state-court action”).     Mr. Gonzalez alleged that Mr.
     5   Kitay breached the agreement to provide legal services by “acting
     6   incompetent and failing or refusing to conduct proper and timely
     7   discovery, prosecute, investigate, and research, and in
     8   abandoning client.”   He claimed that he
     9        suffered judgments for attorney fees in the amount of
              $48,000, negligent or intentional emotional distress,
    10        incurred over $12,000 in attorney fees and costs to
              correct the negligence of [Mr. Kitay], and will incur
    11        additional attorney fees in an amount not yet
              ascertained, but in excess of $50,000 including appeals
    12        and trial. [I]n addition, plaintiff claims damages in
              the amount of $140,000 or more for restitution.
    14   The aggregate amount claimed by Mr. Gonzalez was $250,000 plus
    15   attorneys’ fees.
    16        On January 17, 2013, Mr. and Mrs. Kitay filed their
    17   chapter 7 petition in the United States Bankruptcy Court for the
    18   Eastern District of California.    The Kitays’ Schedule F
    19   identified Mr. Gonzalez as a creditor with an unsecured,
    20   nonpriority claim of $250,000 for the state-court action.
    21        Mr. Gonzalez initiated an adversary proceeding against
    22   Mr. Kitay and the Law Offices of Robert N. Kitay, PC, on or
    23   around April 15, 2013.     Mr. Gonzalez objected to discharge under
    24   §§ 727(a)(3) and 727(a)(4)(a) and sought a determination as to
    26          Not all facts discussed herein are included in   the
         excerpts of record. We have exercised our discretion    to review
    27   the bankruptcy court’s docket. See Woods & Erickson,    LLP v.
         Leonard (In re AVI, Inc.), 
    389 B.R. 721
    , 725 n.2 (9th   Cir. BAP
    28   2008).
     1   dischargeability of the debt arising from the state-court action
     2   under §§ 523(a)(2)(A), 523(a)(4), and 523(a)(6).
     3        Mr. Kitay filed an answer to Mr. Gonzalez’s complaint, but
     4   the bankruptcy court struck Mr. Kitay’s answer for his failure to
     5   comply with the court’s order to meet and confer with
     6   Mr. Gonzalez on issues including initial disclosures, settlement,
     7   and a discovery plan.   The court issued its Entry of Default and
     8   Order re: Default Judgment Procedures, in which it directed
     9   Mr. Gonzalez to apply for a default judgment.
    10        Mr. Gonzalez filed his Motion for Entry of Default Judgment,
    11   in which he requested that the bankruptcy court enter default
    12   judgment against Mr. Kitay based on his failure to properly
    13   represent him and his daughter in the various state-court
    14   lawsuits.   Mr. Gonzalez stated that he paid Mr. Kitay and his law
    15   firm “over $2,500 in attorney’s fees” in a wrongful foreclosure
    16   case and “over $2,500 for legal services” in two consolidated
    17   cases regarding a probate collection matter.
    18       The bankruptcy court granted in part and denied in part the
    19   Motion for Entry of Default Judgement.   It stated that
    20   Mr. Gonzalez shall recover $5,000 plus costs from Mr. Kitay, the
    21   total of which shall be nondischargeable pursuant to 11 U.S.C.
    22   § 523(a)(4).   However, the court denied Mr. Gonzalez’s request
    23   for entry of default judgment pursuant to 11 U.S.C.
    24   §§ 523(a)(2)(A), (a)(6), 727(a)(3) and (a)(4).    It dismissed
    25   Mr. Gonzalez’s claims under Civil Rule 12(b)(6), stating that the
    26   allegations in the complaint were insufficient.
    27        The court gave Mr. Gonzalez leave to amend his complaint,
    28   stating:
     1        On or before November 19, 2013, the plaintiff shall
              file and serve on both defendants consistent with the
     2        requirements of Fed. R. Bankr. P. 7004 an amended
              complaint. If the plaintiff does not file an amended
     3        complaint by the foregoing deadline, the plaintiff’s
              claims under 11 U.S.C. §§ 523(a)(2)(A), (a)(6),
     4        727(a)(3) and (a)(4) will be dismissed without further
              notice or hearing. Judgment will not be entered until
     5        all of the plaintiff’s claims, including those that may
              be asserted in an amended complaint, are resolved.
     7        On November 19, 2013, Mr. Gonzalez filed his First Amended
     8   Complaint.   The bankruptcy court issued a Reissued Summons and
     9   Notice of Status Conference in an Adversary Proceeding the
    10   following day.
    11        On November 27, 2013, the bankruptcy court issued a minute
    12   order, noting that Mr. Gonzalez had not yet filed proof of
    13   service for the First Amended Complaint.    The court instructed
    14   Mr. Gonzalez to file a proof of service.    In response,
    15   Mr. Gonzalez filed a notice of compliance in which he stated that
    16   he had mailed a copy of the First Amended Complaint to Mr. Kitay
    17   on November 19.    He attached to the notice a copy of the proof of
    18   service affixed to the end of the First Amended Complaint and a
    19   U.S. Postal Service receipt dated November 19.    Mr. Gonzalez
    20   filed a renewed Motion for Entry of Default Judgment on
    21   December 3, 2013.
    22        Mr. Gonzalez said that, on December 28, 2013, the complaint
    23   was returned to him as undeliverable, and he realized for the
    24   first time that he had mailed the First Amended Complaint to the
    25   wrong address.    He claimed that he had mistakenly used the
    26   address listed on the chapter 7 petition.    On December 30,
    27   Mr. Gonzalez effected personal service on the Kitays at
    28   Mr. Kitay’s law firm.
     1        On January 3, 2014, Mr. Kitay (on behalf of himself and
     2   Mrs. Kitay) filed a motion to set aside the entry of default and
     3   to dismiss the complaint (“Motion to Set Aside”).       In support of
     4   the Motion to Set Aside, Mr. Kitay referred to Mr. Gonzalez as a
     5   “con-man” and a liar.   He raised issues of truthfulness and
     6   veracity from Mr. Gonzalez’s past, including the suspension of
     7   his dental and real estate licenses, allegedly for negligence and
     8   fraud.   Mr. Kitay claimed that, as working with Mr. Gonzalez on
     9   the state cases became more unsavory, he “decided to completely
    10   disassociate [himself] from Mr. Gonzalez.”4      Mr. Kitay also
    11   disputed that he received $5,000 in retainer payments from
    12   Mr. Gonzalez and stated that he only received $1,000 as an
    13   initial retainer.
    14        Mr. Kitay argued that the bankruptcy court should not have
    15   struck his answer for failing to meet and confer with
    16   Mr. Gonzalez.   He stated that Mr. Gonzalez never contacted him to
    17   meet and confer, and he was never served with any order to meet
    18   and confer.   Mr. Kitay argued that he tried to cooperate with
    19   Mr. Gonzalez on discovery issues, but Mr. Gonzalez never
    20   responded to his communications.       Mr. Kitay also informed the
                For example, Mr. Kitay stated that Mr. Gonzalez
         “fraudulently filed documents, or pleadings, under counsel’s name
    23   without counsel’s consent.” Mr. Gonzalez allegedly filed a
         chapter 11 petition under Mr. Kitay’s name on behalf of a company
    24   that Mr. Kitay did not represent. Mr. Gonzalez’s subsequent
         attorney also sought to withdraw as Mr. Gonzalez’s counsel for
    25   similar reasons. Mr. Kitay also claimed that Mr. Gonzalez “was
    26   holding himself out to the public, and charging substantial money
         (thousands in retainers), representing to his purported ‘clients’
    27   that he would be able to get their loans re-financing, or
         modified, and that if he was unable to accomplish that, he would
    28   secure counsel on their behalf . . . .”
     1   court that he was not served with any pleadings after
     2   September 30, 2013, and did not receive the First Amended
     3   Complaint until December 30.
     4        In its written disposition entered on January 14, 2014, the
     5   bankruptcy court denied Mr. Gonzalez’s Motion for Entry of
     6   Default Judgment, filed December 3, 2013, since the First Amended
     7   Complaint added Mrs. Kitay as a defendant and added additional
     8   claims.   The court held that the Kitays were entitled to answer
     9   the First Amended Complaint.   Inexplicably, the Kitays never
    10   filed an answer.
    11        On January 28, 2014, Mr. Gonzalez filed his Amended Motion
    12   for Entry of Default Judgment.
    13        On April 8, 2014, the bankruptcy court issued its written
    14   ruling regarding Mr. Kitay’s Motion to Set Aside.   The court
    15   denied Mr. Kitay’s request to vacate the court’s August 21, 2013
    16   order striking his answer and entering default and the
    17   November 4, 2013 order entering default judgment.   However,
    18   regarding the request to dismiss the adversary proceeding, the
    19   court dismissed all claims without leave to amend, “with the
    20   exception of the claim for relief under 11 U.S.C. § 523(a)(4) as
    21   to Robert N. Kitay only . . . .”
    22        First, regarding Mr. Kitay’s request to vacate the default
    23   order and default judgment, the court stated that Mr. Kitay did
    24   not satisfy the three-prong test set out in Franchise Holding II,
    25   LLC v. Huntington Restaurants Group, Inc., 
    375 F.3d 922
    , 925-26
    26   (9th Cir. 2004).   The court held that Mr. Kitay did not meet his
    27   burden regarding the first prong, i.e., whether default was
    28   willful or whether culpable conduct of defendant led to default.
     1   The court stated that, even though Mr. Kitay may not have
     2   received any communication from Mr. Gonzalez regarding orders to
     3   confer, the filing of his answer subjected him to the
     4   jurisdiction of the court, and he was required to comply with all
     5   court orders.   The court also held that Mr. Kitay did not meet
     6   the third prong, i.e., whether setting aside default would
     7   prejudice the adverse party, since this factor was not addressed
     8   in the Motion to Set Aside.   However, the court held that
     9   Mr. Kitay satisfied the second prong, i.e., whether a meritorious
    10   defense has been presented.
    11        Second, regarding Mr. Kitay’s request to dismiss the
    12   adversary proceeding, the court agreed that Mr. Gonzalez’s
    13   failure to timely serve the First Amended Complaint warranted
    14   dismissal of the remaining claims.   It also noted that the new
    15   claims against Mrs. Kitay were time-barred and that the remaining
    16   claims should be asserted in a proof of claim.   Finally, the
    17   court found that $5,000 was the proper amount of the
    18   nondischargeable debt owed to Mr. Gonzalez.
    19        Also on April 8, 2014, Mr. Gonzalez filed a proof of claim
    20   for “$250,000 or more” in the underlying bankruptcy action.
    21        Mr. Gonzalez filed his notice of appeal on April 17, 2014.
    22   On April 18, 2014, the bankruptcy court entered its Judgment in
    23   Mr. Gonzalez’s favor for $5,000 plus $293 in costs and held that
    24   those amounts are nondischargeable under § 523(a)(4).5
    26          On November 12, 2015, Mr. Gonzalez filed his Motion for
         Judicial Notice, which requested that the Panel take notice of:
    27   (1) a case in support of his “liberality of amendment” argument;
         (2) Mr. Kitay’s discovery responses regarding his liability
    28                                                      (continued...)
     1                             JURISDICTION
     2        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
     3   §§ 1334 and 157(b)(1) and (b)(2)(I) and (J).   We have
     4   jurisdiction under 28 U.S.C. § 158.
     5                                ISSUES
     6        (1) Whether the bankruptcy court erred in awarding
     7   Mr. Gonzalez $5,000 plus costs instead of $250,000.
     8        (2) Whether the bankruptcy court erred in finding that
     9   Mr. Kitay had asserted a meritorious defense, even though it
    10   found that Mr. Kitay did not satisfy the other two prongs
    11   required to set aside the default judgment.
    12        (3) Whether the bankruptcy court erred in dismissing the
    13   remaining claims against the Kitays for Mr. Gonzalez’s failure to
    14   timely serve the amended complaint.
    17   insurance policy; (3) a case concerning whether the court had
         constitutional authority to enter a final judgment; (4) a state-
    18   court minute order purporting to establish the validity of his
    19   dismissed claims; and (5) a disciplinary opinion demonstrating
         that Mr. Kitay has been suspended for thirty days by the
    20   California state bar.
    21        These documents are not appropriate for judicial notice.
         First, the Panel does not take judicial notice of the cases
         presented by Mr. Gonzalez, which may be appropriate as case
    23   citations or authority, rather than adjudicative facts. Second,
         the remainder of the documents are irrelevant to the present
    24   appeal. See Ly v. Che (In re Ly), 601 F. App’x 494, 496 n.1 (9th
         Cir. 2015) (“We deny all of the pending requests for judicial
    25   notice because all of them seek notice of matters irrelevant to
    26   the decision of this appeal.”); Santa Monica Food Not Bombs v.
         City of Santa Monica, 
    450 F.3d 1022
    , 1025 n.2 (9th Cir. 2006)
    27   (declining to take judicial notice of documents not relevant to
         resolution of the appeal). Therefore, Mr. Gonzalez’s Motion for
    28   Judicial Notice is DENIED.
     1                           STANDARD OF REVIEW
     2        “In bankruptcy discharge appeals, the Panel reviews the
     3   bankruptcy court’s findings of fact for clear error and
     4   conclusions of law de novo, and applies de novo review to ‘mixed
     5   questions’ of law and fact that require consideration of legal
     6   concepts and the exercise of judgment about the values that
     7   animate the legal principles.”   Oney v. Weinberg
     8   (In re Weinberg), 
    410 B.R. 19
    , 28 (9th Cir. BAP 2009), aff’d,
     9   407 F. App’x 176 (9th Cir. 2010) (citing Wolkowitz v. Beverly
    10   (In re Beverly), 
    374 B.R. 221
    , 230 (9th Cir. BAP 2007), aff’d in
    11   part & dismissed in part, 
    551 F.3d 1092
     (9th Cir. 2008)).
    12        We review the bankruptcy court’s ruling on a motion to set
    13   aside a default judgment for abuse of discretion.   Sallie Mae
    14   Serv., LP v. Williams (In re Williams), 
    287 B.R. 787
    , 791 (9th
    15   Cir. BAP 2002) (citing United States v. Real Prop., 
    135 F.3d 16
       1312, 1314 (9th Cir. 1998)).   A bankruptcy court abuses its
    17   discretion if it applied the wrong legal standard or its findings
    18   were illogical, implausible, or without support in the record.
    19   See, Inc. v. Edriver Inc., 
    653 F.3d 820
    , 832
    20   (9th Cir. 2011).
    21        We review for abuse of discretion the bankruptcy court’s
    22   dismissal of a complaint for failure to comply with the rules or
    23   court order.   See Schmidt v. Herrmann, 
    614 F.2d 1221
    , 1224 (9th
    24   Cir. 1980).
    25        “We do not reverse for errors not affecting substantial
    26   rights of the parties, and may affirm for any reason supported by
    27   the record.”   COM–1 Info, Inc. v. Wolkowitz (In re Maximus
    28   Computers, Inc.), 
    278 B.R. 189
    , 194 (9th Cir. BAP 2002); see
     1   28 U.S.C. § 2111; Civil Rule 61, incorporated by Rule 9005.
     2                               DISCUSSION
     3        While many of Mr. Gonzalez’s arguments are unclear,
     4   Mr. Gonzalez is proceeding pro se in this appeal, so we will
     5   construe the arguments in his brief liberally.    See Kashani v.
     6   Fulton (In re Kashani), 
    190 B.R. 875
    , 883 (9th Cir. BAP 1995).
     7   A.   The bankruptcy court did not err in awarding Mr. Gonzalez
              $5,000, rather than $250,000.
     9        Mr. Gonzalez first assigns error to the bankruptcy court’s
    10   award of $5,000 plus costs as nondischargeable under § 523(a)(4).
    11   He argues that the bankruptcy court erred by failing to apply the
    12   rule of “liberality in amendments.”   He claims that his proof of
    13   claim for “$250,000 or more,” filed on the same day the
    14   bankruptcy court issued its order on the Motion to Set Aside
    15   Default, as well as the $250,000 informally requested in the
    16   adversary complaint, put the bankruptcy court on notice that he
    17   sought recovery of $250,000 from Mr. Kitay.   He argues that,
    18   because a “[p]roof of claim is prima facie evidence of the
    19   validity and amount of claim[,]” the bankruptcy court should have
    20   awarded him the entire $250,000 he requested.    He requests that
    21   the Panel order the $250,000 “paid ‘on demand’ by the liability
    22   policy carrier of attorney/debtor Kitay.”
    23        Mr. Gonzalez does not understand that filing a proof of
    24   claim in a bankruptcy case is different from, and not a
    25   substitute for, filing a complaint and presenting evidence in an
    26   adversary proceeding.   A party who wishes to share in the
    27   distribution from a bankruptcy estate generally must file a proof
    28   of claim in the parent bankruptcy proceeding.    See Rule 3001;
     1   § 501.   A party who wishes to object to the debtor’s discharge,
     2   or seek a determination of the dischargeability of debt, must
     3   file a complaint to commence an adversary proceeding.       See
     4   Rule 7001; Rule 7003.    Filing a proof of claim in the underlying
     5   bankruptcy case is separate from any adversary proceeding: “the
     6   filing of a proof of claim does not . . . initiate an adversary
     7   proceeding.”   Lyon v. Gila River Indian Cmty., 
    626 F.3d 1059
     8   1070 (9th Cir. 2010) (citing Lundell v. Anchor Constr.
     9   Specialists, Inc., 
    223 F.3d 1035
    , 1039 (9th Cir. 2000)).
    10        The distinction between a proof of claim and a complaint is
    11   important in several respects, one of which has to do with the
    12   burdens of production and proof.      A proof of claim is
    13   presumptively valid.    Garner v. Shier (In re Garner), 
    246 B.R. 14
       617, 620 (9th Cir. BAP 2000) (“There is an evidentiary
    15   presumption that a correctly prepared proof of claim is valid as
    16   to liability and amount.”).    Anyone who contests the claim must
    17   produce evidence sufficient to dispel the presumptive validity of
    18   the claim.   In an adversary proceeding, however, the plaintiff
    19   has the burdens of production and proof.      The plaintiff cannot
    20   carry or shift that burden by the simple expedient of filing a
    21   proof of claim.   In other words, the mere filing of a proof of
    22   claim does not establish the validity of the claim for the
    23   purposes of an adversary proceeding.
    24        Mr. Gonzalez points out that, in appropriate circumstances,
    25   an adversary complaint can serve as an informal proof of claim.
    26   See Dicker v. Dye (In re Edelman), 
    237 B.R. 146
    , 154 (9th Cir.
    27   BAP 1999).   But the converse is not true.     While an adversary
    28   complaint can sometimes suffice as an informal proof of claim, a
     1   proof of claim cannot suffice as a complaint under Rules 7001 and
     2   7003.   The filing of the proof of claim in the underlying
     3   bankruptcy proceeding does not affect the adversary proceeding or
     4   require the court to determine that the entire amount of the
     5   claim is nondischargeable.
     6        Moreover, the bankruptcy court’s August 21, 2013 Entry of
     7   Default and Order re: Default Judgment Procedures specifically
     8   required Mr. Gonzalez to apply for a default judgment and “prove
     9   up” his request.   The court then found that, based on
    10   Mr. Gonzalez’s two alleged payments of $2,500 to Mr. Kitay,
    11   $5,000 plus costs were nondischargeable under § 523(a)(4).
    12   Mr. Gonzalez did not submit evidence that would substantiate the
    13   remainder of his claim for $250,000.   In any event, Mr. Gonzalez
    14   has not assigned any other error to the award.   Accordingly, we
    15   hold that the bankruptcy court did not err in awarding
    16   Mr. Gonzalez $5,000 plus costs as nondischargeable debt.
    17   B.   The bankruptcy court did not err in its application of Civil
              Rule 55(c) and finding that Mr. Kitay stated a meritorious
    18        defense.
    19        Second, Mr. Gonzalez argues that the court erred in its
    20   application of Civil Rule 55 because it held that Mr. Kitay
    21   satisfied the second prong of the test by stating a “meritorious
    22   defense.”
    23        Civil Rule 55(c), made applicable through Rule 7055,
    24   provides that “[t]he court may set aside an entry of default for
    25   good cause . . . .”   The “good cause” inquiry considers three
    26   factors: “(1) whether [the defendant] engaged in culpable conduct
    27   that led to the default; (2) whether [the defendant] had a
    28   meritorious defense; or (3) whether reopening the default
     1   judgment would prejudice [the plaintiff].”    Franchise Holding II,
     2   LLC v. Huntington Restaurants Grp., Inc., 
    375 F.3d 922
    , 926 (9th
     3   Cir. 2004).    “As these factors are disjunctive, the district
     4   court was free to deny the motion ‘if any of the three factors
     5   was true.’”    Id. (quoting Am. Ass’n of Naturopathic Physicians v.
     6   Hayhurst, 
    227 F.3d 1104
    , 1108 (9th Cir. 2000)).
     7        In the present case, the bankruptcy court found that
     8   Mr. Kitay could not establish the first and third factors, but
     9   that he had stated “a meritorious defense” under the second
    10   factor.   It stated that Mr. Kitay “has alleged sufficient facts
    11   in the motion that, if true[,] would constitute a defense to the
    12   plaintiff’s claims.”    Nevertheless, because Mr. Kitay did not
    13   satisfy all three factors, the court denied the Motion to Set
    14   Aside.
    15        Mr. Gonzalez argues that the court “overreached to the point
    16   of denying [him] an appropriate award of damages according to the
    17   amended proof of claim or the amount of damages detailed in the
    18   [First Amended Complaint].”    He claims that, in another case
    19   concerning a motion to set aside, the bankruptcy court stopped
    20   its analysis after finding that the movant did not meet the third
    21   criterion.    Citing In re Christiansen, Case No. 05-200050-B-7,
    22   United States Bankruptcy Court for the Eastern District of
    23   California, Mr. Gonzalez points to the court’s conclusion that,
    24   “[b]ecause the court finds prejudice, it declines to reach the
    25   other two possible reasons for denial enumerated in Franchise
    26   Holding.”
    27        Mr. Gonzalez misapprehends the court’s analysis.    While it
    28   is true that a movant’s failure to establish any one of the three
     1   factors is fatal to his position, nothing prevents a court from
     2   articulating a complete analysis of all factors.    Further, the
     3   court’s decision to award Mr. Gonzalez $5,000 rather than
     4   $250,000 had nothing to do with its analysis of the second
     5   factor.   The court awarded $5,000 months before it considered
     6   Mr. Kitay’s Motion to Set Aside.     The court did not “overreach”
     7   when it determined that Mr. Kitay had alleged meritorious
     8   defenses.
     9        Mr. Gonzalez also argues that the court “overreached” and
    10   “made reversible error in finding that Kitay met the second
    11   factor . . . .”6   Mr. Gonzalez goes on at length to argue
    12   Mr. Kitay’s alleged professional negligence and fraud.    However,
    13   the bankruptcy court was not adjudicating the merits of
    14   Mr. Gonzalez’s case or Mr. Kitay’s defenses.    Mr. Kitay needed
    15   only to offer “specific facts that would constitute a defense.”
    16   Franchise Holding II, LLC, 375 F.3d at 926 (citing Madsen v.
    17   Bumb, 
    419 F.2d 4
    , 6 (9th Cir. 1969)).    Although Mr. Gonzalez may
    18   not have liked the fact that Mr. Kitay’s defenses involved
    19   allegations of Mr. Gonzalez’s wrongdoing and misconduct, the
    20   court found that these facts were sufficient to carry the
    21   relatively light burden of stating a meritorious defense.    As
    22   such, the court did not err in its analysis of the Civil
    24          Mr. Gonzalez seems to conflate the Motion to Set Aside
         with the Motion to Strike the Adversary Proceeding. He states
    25   that the court overreached when it held that Mr. Kitay met the
    26   second factor of the three-part test “based on a mistaken and
         inadvertent mailing error causing no consequence to Kitay.” The
    27   late service of the First Amended Complaint is unrelated to
         Mr. Kitay’s burden to offer meritorious defenses to the claims
    28   raised by Mr. Gonzalez.
     1   Rule 55(c) test, and it did not adjudicate the merits of
     2   Mr. Kitay’s defense.
     3        Mr. Gonzalez states that, because of the court’s ruling, he
     4   will face prejudice by having to “re-litigate” the issues raised
     5   by Mr. Kitay.   Mr. Gonzalez will face no such burden.   In fact,
     6   because the bankruptcy court ruled that Mr. Kitay’s
     7   nondischargeable liability is only $5,000, Mr. Gonzalez’s
     8   additional claims will be barred (assuming Mr. Kitay receives a
     9   discharge).
    10        In any event, Mr. Gonzalez lacks standing to appeal on this
    11   basis, because he prevailed in the bankruptcy court: the court
    12   declined to set aside the default.   See Duckor Spradling &
    13   Metzger v. Baum Tr. (In re P.R.T.C., Inc.), 
    177 F.3d 774
    , 777
    14   (9th Cir. 1999) (“[C]ourts have created an additional prudential
    15   standing requirement in bankruptcy cases: The appellant must be a
    16   ‘person aggrieved’ by the bankruptcy court’s order.” (citing
    17   Brady v. Andrew (In re Commercial W. Fin. Corp.), 
    761 F.2d 1329
    18   1334 (9th Cir. 1985))); id. (“An appellant is aggrieved if
    19   ‘directly and adversely affected pecuniarily by an order of the
    20   bankruptcy court’; in other words, the order must diminish the
    21   appellant’s property, increase its burdens, or detrimentally
    22   affect its rights.” (quoting Fondiller v. Robertson
    23   (In re Fondiller), 
    707 F.2d 441
    , 442 (9th Cir. 1983))).
    24   C.   The court did not err in dismissing the remaining claims for
              Mr. Gonzalez’s failure to timely serve an amended complaint.
    26        Next, Mr. Gonzalez argues that the bankruptcy court erred in
    27   dismissing his remaining claims for failing to comply with the
    28   court’s deadline to serve the First Amended Complaint.    We hold
     1   that the court did not abuse its discretion in dismissing the
     2   untimely complaint.7
     3        A court may dismiss an untimely complaint pursuant to a
     4   federal statute or rule, a local rule, or the court’s inherent
     5   power.   As the bankruptcy court did not identify the underlying
     6   authority for its dismissal, we first consider whether the court
     7   properly dismissed the remaining claims under the federal rules.
     8        Civil Rule 41(b), which is made applicable to adversary
     9   proceedings pursuant to Rule 7041, states that, “[i]f the
    10   plaintiff fails to prosecute or to comply with these rules or a
    11   court order, a defendant may move to dismiss the action or any
    12   claim against it.”     Civil Rule 41(b) (emphases added).   “[W]hen a
    13   plaintiff fails to amend his complaint after the district judge
    14   dismisses the complaint with leave to amend, the dismissal is
    15   typically considered a dismissal for failing to comply with a
    16   court order rather than for failing to prosecute the claim.”
    17   Yourish v. Cal. Amplifier, 
    191 F.3d 983
    , 986 (9th Cir. 1999).
    18        [I]n order for a court to dismiss a case as a sanction,
              the district court must consider five factors: “(1) the
    19        public’s interest in expeditious resolution of
              litigation; (2) the court’s need to manage its docket;
    20        (3) the risk of prejudice to the defendants; (4) the
              public policy favoring disposition of cases on their
    21        merits; and (5) the availability of less drastic
              alternatives.” We “may affirm a dismissal where at
                Mr. Gonzalez also argues that the court erred in
    24   dismissing the remaining claims, because, inter alia, it found
         that Mr. Kitay “acted in willful bad conduct,” it “disregarded
    25   the availability of Kitay’s $1M liability policy,” and it did not
    26   award $250,000 in the interest of justice. However, these
         arguments are facially not relevant to dismissal of claims that
    27   the debt is nondischargeable, and Mr. Gonzalez develops no
         arguments that make them pertinent. Therefore, we are unable to
    28   discern any error.
     1          least four factors support dismissal, . . . or where at
                least three factors ‘strongly’ support dismissal.”
     2          “Although it is preferred, it is not required that the
                district court make explicit findings in order to show
     3          that it has considered these factors and we may review
                the record independently to determine if the district
     4          court has abused its discretion.”
     5   Id. at 990 (internal citations omitted).    “These factors are not
     6   a series of conditions precedent before the judge can do
     7   anything, but a way for a district judge to think about what to
     8   do.”    In re Phenylpropanolamine Prods. Liab. Litig., 
    460 F.3d 9
       1217, 1226 (9th Cir. 2006) (internal quotation marks omitted).
    10          In the present case, it is undisputed that Mr. Gonzalez did
    11   not comply with the court’s order to timely serve the Kitays.
    12   The bankruptcy court gave Mr. Gonzalez until November 19, 2013 to
    13   file and serve his amended complaint and cautioned that, if
    14   Mr. Gonzalez did “not file an amended complaint by the foregoing
    15   deadline, the plaintiff’s claims under 11 U.S.C. §§ 523(a)(2)(A),
    16   (a)(6), 727(a)(3) and (a)(4) will be dismissed without further
    17   notice or hearing.”
    18          Mr. Gonzalez filed his First Amended Complaint on
    19   November 19.    He sent a copy to the Kitays via U.S. mail, but
    20   mailed it to the wrong address.    He claims that he did not
    21   realize the error until the complaint was returned undelivered.
    22   Mr. Gonzalez eventually served the Kitays on December 30, over a
    23   month past the court’s deadline.
    24          In dismissing the First Amended Complaint, the bankruptcy
    25   court’s April 8, 2014 order did not explicitly address the five
    26   factors articulated in Hernandez and Yourish.    We thus review the
    27   five factors to determine whether the bankruptcy court abused its
    28   discretion in dismissing the First Amended Complaint.      See
     1   Yourish, 191 F.3d at 989 (the appellate court has “not always
     2   been troubled by a district court’s failure to explain the
     3   reasons for dismissal”).
     4        The first two factors weigh heavily in favor of dismissal.
     5   First, “the public’s interest in expeditious resolution of
     6   litigation always favors dismissal.”    Id. at 990.   Moreover,
     7   “[d]istrict judges are best situated to decide when delay in a
     8   particular case interferes with docket management and the public
     9   interest.”    Id. (quoting Ash v. Cvetkov, 
    739 F.2d 493
    , 496 (9th
    10   Cir. 1984)).    Second, “to be able to manage its docket
    11   effectively, the Court must be able to dismiss actions without
    12   operative complaints which have stalled due to one party’s
    13   unilateral inaction in meeting court-imposed deadlines.”      Gleason
    14   v. World Sav. Bank, FSB, Case No. 12–cv–03598–JST, 
    2013 WL 15
       3927799, at *1 (N.D. Cal. July 26, 2013).    Here, Mr. Gonzalez’s
    16   failure to serve his First Amended Complaint for over a month
    17   after the court-imposed deadline cuts against the public interest
    18   and the court’s ability to manage its docket.    The court made
    19   clear that Mr. Gonzalez was to “file and serve” the amended
    20   complaint by November 19, 2013.    The record supports a factual
    21   finding that Mr. Gonzalez’s delay interfered with the expeditious
    22   resolution of the case.    Thus, the first two factors strongly
    23   favor dismissal.    See Yourish, 191 F.3d at 991 (“[W]e accept [the
    24   court’s] factual finding that Plaintiffs knew that they were
    25   required to file the amended complaint within sixty days rather
    26   than within sixty [days] of the issuance of a written order as
    27   they claim.    Because the district judge was in a superior
    28   position to evaluate the effects of delay on her docket, . . . we
     1   find that this factor strongly favors dismissal.”).
     2        The third factor, the risk of prejudice to the defendants,
     3   “is related to the plaintiff’s reason for defaulting in failing
     4   to timely amend.”    Id. (citation omitted).   A plaintiff’s “paltry
     5   excuse for his default on the judge’s order” may “indicate[ ]
     6   that there was sufficient prejudice to Defendants from the delay
     7   . . . .”   Id. at 992.   In the present case, the bankruptcy court
     8   made clear that Mr. Gonzalez’s excuse for his failure to serve
     9   the Kitays was unacceptable.    It noted that the Kitays had filed
    10   a notice of change of address months before Mr. Gonzalez
    11   instituted the adversary proceeding.    It also pointed out that
    12   Mr. Gonzalez had previously used the Kitays’ correct address for
    13   earlier filings.    In sum, the bankruptcy court found
    14   Mr. Gonzalez’s excuses “unavailing.”    We agree that Mr. Gonzalez
    15   was not justified in untimely serving the Kitays with the First
    16   Amended Complaint, and this factor weighs in favor of dismissal.8
    17   See League of United Latin Am. Citizens Inc. v. Eureste,
    18   No. 13-CV-04725-JSC, 
    2014 WL 5473560
    , at *4 (N.D. Cal. Oct. 28,
    19   2014) (finding that the third factor slightly favors dismissal
    20   where the court “does not find this explanation credible[,]”
    21   where the plaintiff claimed he had miscalculated the number of
    22   days that he had to file an amended complaint).
    24          Mr. Gonzalez argues that the court should have accepted
         the untimely filing under Rule 9006(b)(1), which allows for an
    25   enlargement of time “where the failure to act was the result of
    26   excusable neglect.” However, Rule 9006(b)(1) is invoked “on
         motion made[,]” and Mr. Gonzalez did not file any motion for
    27   enlargement of time. Moreover, the bankruptcy court did not err
         in rejecting Mr. Gonzalez’s excuse for the late filing, so we do
    28   not recognize any “excusable neglect.”
     1        The fourth factor, whether public policy favors disposition
     2   of the case on the merits, “normally weighs strongly against
     3   dismissal.”   Gleason, 
    2013 WL 3927799
    , at *2.   On the other hand,
     4   “this factor lends little support to a party whose responsibility
     5   it is to move a case toward disposition on the merits but whose
     6   conduct impedes progress in that direction.”
     7   In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d at 1228.
     8   We cannot say that the tardiness in serving the First Amended
     9   Complaint created such a great delay as to trump the presumption
    10   in favor of resolution on the merits.   As such, this factor
    11   weighs against dismissal.
    12        Finally, we consider whether the bankruptcy court should
    13   have employed less drastic alternatives.   On the one hand, the
    14   Ninth Circuit has held that, in some circumstances, a chance to
    15   amend the complaint and a “warning to a party that his failure to
    16   obey the court’s order will result in dismissal can satisfy the
    17   ‘consideration of alternatives’ requirement.”    Ferdik v.
    18   Bonzelet, 
    963 F.2d 1258
    , 1262 (9th Cir. 1992) (citation omitted).
    19   On the other hand, the Ninth Circuit has also held that a warning
    20   and “the district court’s granting Plaintiffs leave to amend was
    21   not a lesser sanction because they had not yet disobeyed the
    22   court’s order.”   Yourish, 191 F.3d at 992; see Pagtalunan v.
    23   Galaza, 
    291 F.3d 639
    , 643 (9th Cir. 2002) (“we are constrained by
    24   the holding in Yourish to find that the availability of less
    25   drastic alternatives was not considered by the district court”).
    26   The record does not disclose whether the bankruptcy court
    27   considered less drastic alternatives to dismissal.    Although the
    28   bankruptcy court gave Mr. Gonzalez a chance to amend his
     1   deficient pleading and warned that it would dismiss the complaint
     2   if not filed and served by November 19, the warning alone appears
     3   to be insufficient to constitute a less drastic sanction.    As
     4   such, this factor weighs against dismissal.
     5        In weighing the five factors, we are guided by the Ninth
     6   Circuit’s decision in Yourish, which also involved dismissal
     7   under Civil Rule 41(b) for failure to timely amend a complaint.
     8   In that case, the court granted the defendants’ motion to
     9   dismiss, but, upon agreement of the parties, gave the plaintiffs
    10   sixty days to file an amended complaint.    When the plaintiffs
    11   failed to do so, the defendants moved to dismiss the case.    The
    12   court granted the motion and dismissed the case with prejudice.
    13        On appeal, the Ninth Circuit considered the five factors for
    14   dismissal under Civil Rule 41(b).    As in the present case, the
    15   court found that the first three factors favored dismissal, while
    16   the latter two factors weighed against dismissal.    The court
    17   concluded that, “[b]ecause we have found that three factors
    18   strongly favor dismissal, we feel that the district court did not
    19   abuse its discretion in dismissing Plaintiffs’ case for failing
    20   to amend in a timely fashion.   Although dismissal was harsh, we
    21   do not have a ‘definite and firm conviction’ that the district
    22   court ‘committed a clear error of judgment in the conclusion it
    23   reached upon a weighing of the relevant factors.’”    Yourish,
    24   191 F.3d at 992 (quoting Ferdik, 963 F.2d at 1260).
    25        Accordingly, because a permissible weighing of the five
    26   factors favors dismissal, we hold that the bankruptcy court did
    27   not abuse its discretion in dismissing the First Amended
    28   Complaint for Mr. Gonzalez’s failure to comply with the court’s
     1   order.9   (We therefore need not consider the bankruptcy court’s
     2   authority to dismiss the amended complaint under the local rules
     3   or its inherent powers.)
     4        Furthermore, the court dismissed the claims against
     5   Mrs. Kitay, who was newly added as a defendant to the First
     6   Amended Complaint.   The court held that, not only did
     7   Mr. Gonzalez fail to timely serve Mrs. Kitay, but objections as
     8   to Mrs. Kitay’s “discharge or nondischargeability as to a debt
     9   . . . are time-barred; the filing of the FAC on November 19, 2013
    10   . . . occurred long after the deadline of April 15, 2013, to file
    11   a claim objecting [to Mrs. Kitay’s] discharge or the
    12   nondischargeability of a debt as to [Mrs. Kitay] expired.”
    13   Mr. Gonzalez does not challenge the court’s dismissal of the
    14   claims against Mrs. Kitay as time-barred.   As such, the court did
    15   not err in dismissing all claims against Mrs. Kitay.
    16   D.   The Panel declines to consider issues not raised before the
              bankruptcy court or not properly on appeal.
    18        Mr. Gonzalez offers materials and arguments not properly
    19   before this Panel on appeal.   We decline to consider them.
    20        First, we will only consider documents that are properly a
    21   part of the record below.   Except in rare cases where “‘the
    22   interests of justice demand it,’ an appellate court will not
    23   consider evidence not presented to the trial court[.]”   Graves v.
                Presumably in connection with his discussion of prejudice,
    25   Mr. Gonzalez argues at length about a law firm that represented
    26   both Mr. Kitay and a defendant in one of the state-court cases,
         Mr. Kitay’s allegations of Mr. Gonzalez’s questionable background
    27   and character, and his difficulties collecting the $5,000 award
         from Mr. Kitay. These arguments are not relevant to the present
    28   appeal and are not addressed herein.
     1   Myrvang (In re Myrvang), 
    232 F.3d 1116
    , 1119 n.1 (9th Cir. 2000)
     2   (citations omitted).   Mr. Gonzalez attaches numerous documents to
     3   his appendix (specifically, his Supplemental Excerpts) that were
     4   not presented to the bankruptcy court.    The vast majority of
     5   these documents were filed in the state-court action after the
     6   bankruptcy court’s April 8, 2014 order.    Furthermore, these
     7   documents have little bearing on the present appeal, since they
     8   do not appear to concern the issues raised by the bankruptcy
     9   court’s April 8, 2014 order.   As such, the interests of justice
    10   do not demand that we consider the documents and arguments not
    11   raised before the bankruptcy court.
    12        Second, Mr. Gonzalez requests that the Panel not only award
    13   him $250,000 per his proof of claim, but that we order
    14   Mr. Kitay’s liability insurer to satisfy the judgment
    15   immediately.   Mr. Gonzalez’s request is outside of the scope of
    16   this appeal.   Most importantly, the insurer is not a party to
    17   this appeal, so we cannot exercise jurisdiction over the insurer
    18   to compel payment.   Nor was the insurer a party before the
    19   bankruptcy court, and the bankruptcy court never adjudicated the
    20   obligations of Mr. Kitay’s insurer.   Even if we were to find in
    21   Mr. Gonzalez’s favor, we cannot afford Mr. Gonzalez the relief he
    22   requests with regard to Mr. Kitay’s insurer.
    23                               CONCLUSION
    24        For the reasons set forth above, we conclude that the
    25   bankruptcy court did not err in awarding Mr. Gonzalez $5,000 plus
    26   costs under § 523(a)(4) and dismissing his other claims.
    27   Accordingly, we AFFIRM.

Document Info

DocketNumber: EC-14-1200-FDJu

Filed Date: 12/10/2015

Precedential Status: Non-Precedential

Modified Date: 12/10/2015

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