Diversified Funding Group, LLC v. Daniel Hendon

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 3, 2019
• Docket: 17-56242
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DIVERSIFIED FUNDING GROUP, LLC, No. 17-56242

Plaintiff-Appellant, D.C. No. 2:17-cv-00189-VAP-AFM v.

DANIEL L. HENDON, MEMORANDUM*

Defendant-Appellee,

v.

PEGGY JACKSON, as Trustee of the W & N Hendon Revocable Trust,

Movant-Appellee.

DIVERSIFIED FUNDING GROUP, LLC, No. 18-55159

DANIEL L. HENDON,

Defendant,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. PEGGY JACKSON, as Trustee of the W & N Hendon Revocable Trust,

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief Judge, Presiding

Argued and Submitted March 5, 2019 Pasadena, California

Before: COLE, Chief Circuit Judge,** and FISHER and NGUYEN, Circuit Judges.

Diversified Funding Group, LLC (“DFG”) appeals the district court’s orders

quashing a levy against funds held in the W & N Hendon Revocable Trust

(“Trust”), releasing the funds, denying DFG’s requests for a turnover order, asset

freeze, and seizure of property, and imposing sanctions on DFG for issuing a

facially invalid subpoena duces tecum. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

1. The Arizona bankruptcy court had subject matter jurisdiction pursuant to

28 U.S.C. §§ 1334 and 157(b)(2)(I).1 Because DFG registered the bankruptcy

** The Honorable Ransey Guy Cole, Jr., Chief Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1 The parties’ requests for judicial notice (docket entry nos. 12, 21) are GRANTED.

2 court’s judgment in California, the district court here had jurisdiction to enforce it

pursuant to 28 U.S.C. § 1963.

The district court correctly rejected DFG’s request to enforce the judgment

against Daniel Hendon by proceeding against Trust assets held by trustee Peggy

Jackson. See Richards v. Jefferson County, 517 U.S. 793, 798 (1996) (explaining

that “one is not bound by a judgment in personam in a litigation in which he is not

designated as a party” except in certain situations not applicable here); Peterson v.

Highland Music, Inc., 140 F.3d 1313, 1323 (9th Cir. 1998) (noting that judgments

may be enforced against non-parties only under “limited circumstances”); cf. In re

Girardi, 611 F.3d 1027, 1036 (9th Cir. 2010) (sanctioning counsel for attempting

to enforce foreign money judgment that “named the wrong defendant” despite

knowing that “the discrepancy could doom any enforcement action”).

To the extent DFG sought to hold the Trust accountable for the judgment

against Hendon on an alter ego or related theory, the district court lacked ancillary

jurisdiction to consider such a claim, which requires a separate action with an

independent jurisdictional basis.2 See Peacock v. Thomas, 516 U.S. 349, 356–59

(1996).

2 At oral argument, counsel for DFG asserted that the district court’s lack of ancillary jurisdiction to evaluate DFG’s claim against Trust assets meant that the court lacked jurisdiction to quash the levy and release the funds, but DFG cites no authority that the district court lacked inherent jurisdiction to dispose of funds within its possession or quash invalid levies issued under its auspices.

3 2. DFG failed to raise in the district court its argument on appeal regarding

the imposition of Rule 45 sanctions. Therefore, this argument is forfeited. See

Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir. 1995) (“As a general rule,

‘a federal appellate court does not consider an issue not passed upon below.’”

(quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976))).

AFFIRMED.