Shmuel Erde v. Carolyn Dye ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: SHMUEL ERDE, No. 19-60062
Debtor. BAP No. 19-1043
------------------------------
MEMORANDUM*
SHMUEL ERDE,
Appellant,
v.
CAROLYN A. DYE,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Lafferty, Spraker, and Taylor, Bankruptcy Judges
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Chapter 11 debtor Shmuel Erde appeals pro se from the Bankruptcy
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Appellate Panel’s decision affirming the bankruptcy court’s order sua sponte
dismissing his bankruptcy case and imposing a pre-filing restriction on Erde as a
vexatious litigant. We have jurisdiction under 28 U.S.C. § 158(d). We review de
novo the bankruptcy court’s conclusions of law and for clear error its findings of
fact. Decker v. Tramiel (In re JTS Corp.), 617 F.3d 1102, 1109 (9th Cir. 2010).
We affirm.
The bankruptcy court did not abuse its discretion by dismissing Erde’s
bankruptcy case because Erde failed to effectuate a confirmable plan of
reorganization. See 11 U.S.C. § 105(a) (setting forth bankruptcy court’s equitable
power to “issue any order, process, or judgment that is necessary or appropriate to
carry out the provisions of this title” including sua sponte action “necessary or
appropriate to enforce or implement court orders or rules, or to prevent an abuse of
process”), § 1112(b)(1), (b)(4) (cause for dismissal of case includes failure to file
or confirm a plan and inability to effectuate substantial consummation of a
confirmed plan); Snell v. Cleveland, Inc., 316 F.3d 822, 825 (9th Cir. 2002)
(standard of review for sua sponte dismissal).
The bankruptcy court did not abuse its discretion by declaring Erde a
vexatious litigant after providing notice and an opportunity to be heard, developing
an adequate record for review, making substantive findings as to the frivolous or
harassing nature of Erde’s litigation history, and narrowly tailoring its prohibition
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on future bankruptcy filings. See Ringgold–Lockhart v. County of Los Angeles,
761 F.3d 1057, 1061-67 (9th Cir. 2014) (setting forth standard of review and
procedural and substantive standards for a federal pre-filing order based on a
vexatious litigant determination).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Erde’s petition for initial determination en banc (Docket Entry Nos. 29, 30)
is denied as untimely. See Fed. R. App. P. 35(c).
All other pending motions and requests are denied.
AFFIRMED.
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