Securities & Exchange Commission v. Rubera , 535 F. App'x 553 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SECURITIES AND EXCHANGE No. 12-35108
COMMISSION,
D.C. No. 3:01-cv-01283-PA
Plaintiff - Appellee,
ERNEST BUSTOS, MEMORANDUM*
Intervenor - Appellant,
v.
PAUL S. RUBERA,
Defendant.
SECURITIES AND EXCHANGE No. 12-35415
COMMISSION,
D.C. No. 3:01-cv-01283-PA
Plaintiff,
and
ERNEST BUSTOS, Pay Phone Owners
Legal Fund, L.L.C.; STEPHEN J.
JOHNSON,
Intervenors - Appellants,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
PAUL S. RUBERA,
Defendant,
and
ALLEN MATKINS LECK GAMBLE
MALLORY & NASTIS LLP; DAVID L.
OSIAS; DAVID R. ZARO,
Movants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Submitted July 11, 2013**
Portland, Oregon
Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.
These two interlocutory appeals are the latest chapters in years-long
litigation spawned by the collapse of Alpha Telcom, a Ponzi scheme that trafficked
in unregistered securities (i.e., investments in payphones). See SEC v. Ross, 504
F.3d 1130 (9th Cir. 2007) (discussing the Alpha Telcom litigation); SEC v. Rubera,
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
350 F.3d 1084 (9th Cir. 2003) (same). Both of the appeals now before us center, in
some way, on the receiver charged with winding down Alpha Telcom.
In the first of these appeals (No. 12-35108), pro se Intervenor–Appellant
Ernest Bustos complains that the district court erred by denying his requests to: (1)
issue an order to show cause why the receiver and everyone in his employ should
not be barred permanently from working as receivers; (2) force the receiver to
disgorge fees he collected in this case, and decline to pay him anything further; and
(3) refer the receiver (and the SEC) to the United States Attorney’s Office for
investigation. In denying Bustos’s motion, the district judge entered an order that
said, among other things, that an opinion addressing certain problems with the
receiver would be forthcoming. It is from that “stay-tuned” order that Bustos
appeals.1
But our jurisdiction extends only to final orders, see 28 U.S.C. § 1291, and
the district court’s order is, on its face, not. Nor did the district court enter an order
appointing a receiver, or an order refusing to wind up a receivership—either of
which would be subject to interlocutory appeal under 28 U.S.C. § 1292(a)(2).
(Bustos’s request was only to remove a specific receiver, not to terminate the
1
The district court has since entered a final order, from which no one timely
appealed.
3
whole receivership.) And the district court’s order, which did not resolve any issue
(it was not meant to), is certainly not the type of order from which the collateral
order doctrine contemplates an appeal, i.e., orders that “‘resolve important
questions separate from the merits, and that are effectively unreviewable on appeal
from the final judgment in the underlying action.’” Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 106 (2009) (quoting Swint v. Chambers Cnty. Comm’n,
514 U.S. 35, 42 (1995)). Accordingly, we dismiss the first appeal for lack of
jurisdiction.
In the second appeal (No. 12-35415), Bustos (now represented) and Stephen
Johnson (Bustos’s attorney) appeal from an order directing them to dismiss a
lawsuit they brought in the Western District of Texas. That suit, on behalf of
Bustos and an organization purporting to represent Alpha Telcom investors,
charged the receiver and others—including the receiver’s attorneys—with
maladministering the Alpha Telcom receivership. The district court ordered
Bustos and Johnson to dismiss their Texas case, pursuant to the terms of an anti-
suit injunction that was entered in the Alpha Telcom litigation to protect the
receiver from harassment by lawsuit. We review for abuse of discretion an order
enforcing an injunction, Cal. Dep’t of Social Servs. v. Leavitt, 523 F.3d 1025, 1031
(9th Cir. 2008), and we affirm the district court.
4
Numerous cases, spanning centuries, carve a peculiar legal niche for suits-
against-receivers; we resolve this case by looking to their progenitor. In Barton v.
Barbour, 104 U.S. 126, 128–29 (1881), the Supreme Court set forth the general
rule—which, with a specific exception, is now embodied in 28 U.S.C. §
959(a)—that a court may protect the receivers that it appoints from suit. The
Barton rule’s purpose is to prevent a subset of a receivership’s creditors from suing
the receiver to procure a judgment that comes from the receivership’s coffers,
thereby advantaging the litigious creditors over their more quiescent fellows when
it comes time to distribute the receivership’s assets. Barton, 104 U.S. at 128–29.
None too subtly, this is what Bustos—with Johnson’s aid—is attempting to do in
the Texas lawsuit. The district court did not abuse its discretion by trying to put a
stop to it.
No. 12-35108 is DISMISSED; No. 12-35415 is AFFIRMED.
5