Chunchai Yu v. Nautilus, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2017
• Docket: 16-60067
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: CHUNCHAI YU, No. 16-60067

Debtor, BAP No. 16-1045

------------------------------ MEMORANDUM* CHUNCHAI YU, AKA Kathine Yu,

Appellant,

v.

NAUTILUS, INC.,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Kurtz, Faris, and Dunn, Bankruptcy Judges, Presiding

Submitted July 11, 2017**

Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges.

Chapter 7 debtor Chunchai Yu 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 (“BAP”) decision affirming the bankruptcy court’s summary

judgment concluding that Yu’s debt to Nautilus, Inc. is excepted from discharge

under 11 U.S.C. § 523(a)(6). We have jurisdiction under 28 U.S.C. § 158(d). We

review de novo decisions of the BAP, and the bankruptcy court’s ruling on

summary judgment. Arrow Elecs., Inc. v. Justus (In re Kaypro), 218 F.3d 1070,

1073 (9th Cir. 2000). We review de novo a bankruptcy court’s determination that

issue preclusion is available, and for an abuse of discretion the decision to apply

issue preclusion. Dias v. Elique, 436 F.3d 1125, 1128 (9th Cir. 2006). We affirm.

The bankruptcy court properly granted summary judgment on the issue of

whether Nautilus’s default judgment against Yu is nondischargeable because Yu

failed to raise a genuine dispute of material fact as to whether the injury to Nautilus

was not willful and malicious. See 11 U.S.C. § 523(a)(6) (providing for exceptions

to discharge “for willful and malicious injury by the debtor to another entity or to

the property of another entity”); Barboza v. New Form, Inc. (In re Barboza), 545

F.3d 702, 706 (9th Cir. 2008) (discussing willful and malicious injury requirements

under § 523(a)(6)).

The bankruptcy court did not err by giving preclusive effect to the district

court’s findings that resulted in Nautilus’s default judgment against Yu. See

2 16-60067 Grogan v. Garner, 498 U.S. 279, 284 n.11 (1991) (issue preclusion applies in

discharge exception proceedings under § 523(a)); Hydranautics v. FilmTec Corp.,

204 F.3d 880, 885 (9th Cir. 2000) (listing requirements for issue preclusion under

federal law); Fed. Deposit Ins. Corp. v. Daily (In re Daily), 47 F.3d 365, 368 (9th

Cir. 1995) (federal law determines the application of issue preclusion to a prior

federal judgment); see also United States v. Gottheiner (In re Gottheiner), 703

F.2d 1136, 1140 (9th Cir. 1983) (giving preclusive effect to a federal default

judgment where the defendant actively engaged in litigation for over a year).

To the extent Yu challenges the judgment and findings of the federal district

court that entered default judgment in favor of Nautilus, we do not consider Yu’s

contentions because such review is outside the scope of the instant appeal.

We reject as meritless Yu’s contention that the bankruptcy’s court decision

should be overturned due to ineffective assistance of counsel. See Hedges v.

Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (there is no

constitutional right to counsel in civil proceedings).

We do not consider arguments and allegations raised for the first time on

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

AFFIRMED.

3 16-60067