Albert Kun v. State Bar of California

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2021
• Docket: 20-15115
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALBERT M. KUN, No. 20-15115

Appellant, D.C. No. 3:19-cv-05783-RS

v. MEMORANDUM* STATE BAR OF CALIFORNIA; FRANCHISE TAX BOARD,

Appellees.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding

Submitted February 17, 2021**

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.

Chapter 7 debtor Albert Kun appeals pro se from the district court’s order

dismissing his bankruptcy appeal for failure to prosecute. We have jurisdiction

under 28 U.S.C. §§ 158(d) and 1291. We review for an abuse of discretion. Ash v.

Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984). We affirm.

* 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). The district court did not abuse its discretion by dismissing Kun’s appeal

after Kun failed to file the documents required by Federal Rule of Bankruptcy

Procedure 8009 in a timely manner. See Pagtalunan v. Galaza, 291 F.3d 639, 640-

43 (9th Cir. 2002) (discussing factors to be considered before dismissing a case for

failure to prosecute; a district court’s dismissal should not be disturbed absent “a

definite and firm conviction” that it “committed a clear error of judgment”

(citations and internal quotation marks omitted)); Ferdik v. Bonzelet, 963 F.2d

1258, 1261 (9th Cir. 1992) (this court may review the record independently if the

district court does not make explicit findings to show its consideration of the

factors).

The district court did not abuse its discretion by denying Kun’s motion for

rehearing because Kun failed to demonstrate any basis for relief. See Fed. R.

Bankr. P. 8022(a)(2); United States v. Fowler (In re Fowler), 394 F.3d 1208, 1214-

15 (9th Cir. 2005) (setting forth standard of review and requiring a movant to state

with particularity each point of law or fact a court overlooked).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments or allegations raised for the first time on appeal.

See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Kun’s motion for a stay of execution (Docket Entry No. 17) is denied.

AFFIRMED.

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