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NOT FOR PUBLICATION FILED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. 19-60039
Debtor. BAP No. 18-1321
------------------------------
MEMORANDUM*
SHMUEL ERDE,
Appellant,
v.
CAROLYN A. DYE,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Faris, Lafferty, and Spraker, 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 orders dismissing
Erde’s adversary proceeding against Carolyn Dye, 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 properly dismissed Erde’s adversary proceeding
against Dye because Dye is entitled to absolute quasi-judicial immunity. See Beck
v. Fort James Corp. (In re Crown Vantage, Inc.), 421 F.3d 963, 971-72 (9th Cir.
2005) (explaining that 28 U.S.C. § 959(a) “does not apply to suits against trustees
for administering or liquidating the bankruptcy estate”); Mullis v. U.S. Bankr.
Court, 828 F.2d 1385, 1390-91, 1394 (9th Cir. 1987) (bankruptcy trustee has
absolute quasi-judicial immunity from damages for acts or omissions within the
ambit of the trustee’s official duties; quasi-judicial immunity available to federal
officers extends to actions for declaratory, injunctive, and other equitable relief).
We reject as without merit Erde’s contentions that Dye or the bankruptcy court
acted in the absence of jurisdiction.
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
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harassing nature of Erde’s litigation history, and narrowly tailoring its prohibition
on future filings to those in bankruptcy court against Dye. 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 No. 35) is
denied as untimely. See Fed. R. App. P. 35(c).
All other pending motions and requests, including Erde’s request for
publication set forth in the reply brief, are denied.
AFFIRMED.
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