FILED JUL 30 2019 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT
In re: BAP No. CC-18-1312-KuTaS
C&M RUSSELL, LLC, Bk. No. 2:11-bk-53845-RK
Debtor. Adv. No. 2:16-ap-01577-RK
MATTIE BELINDA EVANS,
Appellant, v. MEMORANDUM*
ALAN G. TIPPIE; SULMEYERKUPETZ, a professional corporation,
Appellees.
Submitted Without Argument** on July 18, 2019 at Pasadena, California
Filed – July 30, 2019
Appeal from the United States Bankruptcy Court
* This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. ** By order entered on June 3, 2019, a motions panel determined these appeals suitable for submission on the briefs and record without oral argument. for the Central District of California
Honorable Robert N. Kwan, Bankruptcy Judge, Presiding
Appearances: Appellant Mattie Belinda Evans pro se on brief; David J. Richardson of SulmeyerKupetz on brief for appellees, Alan G. Tippie and SulmeyerKupetz
Before: KURTZ, TAYLOR, and SPRAKER, Bankruptcy Judges.
INTRODUCTION
Chapter 111 debtor, C&M Russell, LLC (C&M), sold its assets, paid its
undisputed creditors in full, and filed a motion to dismiss its case. The
bankruptcy court granted C&M's motion and the case closed in late 2012.
Per the dismissal order, the remaining sale proceeds were held in trust
pending the outcome of state court litigation with a disputed creditor. The
litigation resolved in favor of C&M, and the proceeds were turned over to
it in November 2016.
Shortly after, Mattie Belinda Evans, individually and as Chief
Executive Manager as Real Party in Interest for C&M, filed a malpractice
action in the state court against Alan G. Tippie, and his law firm
SulmeyerKupetz, APC (SulmeyerKupetz) (collectively, Defendants) in
1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and “Rule” references are to the Federal Rules of Bankruptcy Procedure.
2 connection with legal services performed for C&M during its bankruptcy
case (State Court Action). Defendants removed the action to the
bankruptcy court, arguing that it had jurisdiction over the claims alleged
under 28 U.S.C. § 1334. Ms. Evans filed a motion to remand, which the
bankruptcy court denied. Defendants then filed a motion for summary
judgment (MSJ), asserting that claim and issue preclusion applied to the
claims. Ms. Evans filed a motion for judgment on the pleadings. The
bankruptcy court granted Defendants' MSJ, denied Ms. Evans' motion for
judgment on the pleadings, entered judgment in favor of Defendants, and
dismissed all claims with prejudice. Ms. Evans appeals from these rulings.
We AFFIRM.
FACTS
A. The Bankruptcy Proceeding
C&M filed its chapter 11 petition in October 2011. At the time, C&M
owned and managed five multi-residential properties. Ms. Evans was the
managing member of C&M.
In February 2012, the bankruptcy court approved C&M's application
to employ SulmeyerKupetz as general bankruptcy counsel. Mr. Tippie was
lead counsel.
In May 2012, SulmeyerKupetz filed its first application for
compensation. Ms. Evans filed a declaration in support of the request
stating that she had no objections and asking that all professional fees and
3 costs be approved in full.
During the bankruptcy case, resolution was reached with the secured
creditors and C&M's properties were sold. The sale proceeds were used to
pay all of C&M's creditors in full, except for one disputed creditor whose
claim was the subject of ongoing litigation in state court.
In August 2012, C&M moved to dismiss its case. In October 2012, the
bankruptcy court granted the motion and SulmeyerKupetz's employment
terminated. In the order dismissing the case (Dismissal Order), certain
distributions were authorized and the balance of the sale proceeds were
placed in SulmeyerKupetz's client trust account pending the outcome of
the litigation with the disputed creditor. The bankruptcy court retained
jurisdiction to hear and determine applications for compensation for
services rendered by professionals employed by order of the bankruptcy
court, including SulmeyerKupetz.
Thereafter, SulmeyerKupetz sought approval of its amended second
and final fee application. Ms. Evans again filed a declaration in support of
the application. The bankruptcy court approved the application in its
entirety.
On December 17, 2013, the bankruptcy case was closed.
In February 2016, the litigation in state court with the disputed
creditor was finalized in favor of C&M. The sale proceeds held in trust
were turned over to C&M in November 2016.
4 B. The Malpractice Lawsuit
On November 30, 2016, Ms. Evans filed a complaint in the Superior
Court for the County of Los Angeles against Defendants seeking over
$10,000,000 in damages, and alleging claims for legal malpractice,
intentional and negligent misrepresentation, breach of the implied
covenant of good faith and fair dealing, breach of fiduciary duty, civil
conspiracy, racism, fraud and fraudulent inducement, and intentional and
negligent infliction of emotional distress. Ms. Evans asserted these claims
in her individual capacity and as the chief executive manager of C&M and
Trustee of the Mattie B. Evans Family Trust. The caption page of the
complaint listed C&M's bankruptcy case as a related case, and made a
demand for a jury trial.
All of the allegations in Ms. Evans' complaint related to Defendants'
legal services provided during C&M's chapter 11 case one way or another.
Her claim for racism was based on the bankruptcy judge's alleged bias.
Ms. Evans complained that C&M's properties were sold instead of
reorganized, and alleged that she was not informed about the dismissal of
C&M's case. She further alleged Defendants wrongfully withheld funds in
their client trust account and did not release the funds until February 2016.
According to Ms. Evans, she was in a vulnerable financial position and
unable to timely make monthly payments on her home mortgage, resulting
in a Notice of Default and Intent of Sale being filed by her lender. She was
5 forced to borrow $87,000 from a hard money lender to save her home.
In December 2016, Defendants filed a notice of removal, arguing that
the bankruptcy court had jurisdiction over the State Court Action under 28
U.S.C. §§ 1334 and 157(b)(2)(A), (B), and (C) because the allegations in the
complaint concerned the administration of the estate and claims against
C&M's bankruptcy counsel for work performed during the bankruptcy
case.
Ms. Evans filed a motion to remand the action to the state court. She
argued that remand was appropriate because there was no basis for the
bankruptcy court to exercise jurisdiction over the claims alleged in her
complaint as they were based on state law. She maintained that Defendants
were California attorneys subject to discipline by independent judges
dedicated to ruling on disciplinary matters. Ms. Evans further argued that
there was no federal subject-matter jurisdiction over a legal malpractice
dispute citing Gunn v. Minton, 133 S.Ct. 105 (2013). According to Ms. Evans,
Defendants were also barred by the doctrine of waiver from removing the
case to federal court based on their actions in directly invoking the state
court's jurisdiction.2 She requested fees and costs under 28 U.S.C. § 1447(c)3
2 It is not exactly clear what actions Ms. Evans was referring to. It appears that she had filed a series of complaints against Defendants in the state court. The first complaint, which Defendants maintain was identical to the removed complaint, was filed on August 23, 2016 (First Action). Defendants filed a demurrer to that complaint on essentially the same grounds that they asserted in the bankruptcy court seeking (continued...)
6 as a result of Defendants' removal.
In opposition, Defendants maintained that the bankruptcy court had
jurisdiction over the issues raised in Ms. Evans' complaint because they
related to C&M's bankruptcy case and affected administration of the estate.
They also pointed out that the bankruptcy court specifically retained
jurisdiction to "hear and consider final fee applications of professionals
employed by [C&M] under 11 U.S.C. § 330" in the Dismissal Order.
Defendants further argued that claim and issue preclusion barred
Ms. Evans' malpractice claims against them under the holdings in Osherow
v. Ernst & Young, LLP (In re Intelogic Trace, Inc.), 200 F.3d 382, 386-88 (5th
Cir. 2000) (claims against accountants for bankruptcy estate are barred by
order approving fee application); Capitol Hill Group v. Pillsbury, Winthrop,
Shaw, Pittman, LLC, 569 F.3d 485, 490 (D.C. Cir. 2009) (claims against former
2 (...continued) dismissal of Ms. Evans' complaint in their motion to dismiss. Prior to the hearing on their demurrer in the state court, Ms. Evans filed an amended complaint. She then voluntarily dismissed the First Action. Fourteen days later, she filed the complaint at issue in this proceeding. 3 28 U.S.C. § 1447 (c) is a general remand statute which also applies in bankruptcy cases and states in relevant part:
(c) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). . . . An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. . . .
7 bankruptcy counsel barred by order approving fee applications); and
Iannochino v. Rodolakis (In re Iannochino), 242 F.3d 36, 49 (1st Cir. 2001) (res
judicata bars lawsuit for claims that could have been raised as an objection
to final fee application in bankruptcy).
Finally, Defendants argued that the factors considered for equitable
remand all favored the bankruptcy court's continuing jurisdiction. They
asserted that remand would not promote judicial economy and that the
removal did not create a less convenient forum. Defendants also contended
that Ms. Evans' racism claim arose under the Constitution and thus was
"certainly not within the purview of the state courts."
On January 31, 2017, the bankruptcy court issued its memorandum
decision and order denying Ms. Evans' motion to remand. The court found
that it had "related to" jurisdiction over the claims in the removed action
because they arose out of Defendants' acts in their representation of C&M.
The court observed that it had supervisory oversight over Defendants'
employment and compensation during the pendency of the bankruptcy
case. The court also found that Gunn v. Minton was inapplicable. In Gunn,
the United States Supreme Court held that the Texas Supreme Court erred
in holding that the federal courts had exclusive jurisdiction over a legal
malpractice claim arising out of a federal patent case, and further held that
the claim was not subject to "exclusive" jurisdiction of the federal courts.
The bankruptcy court noted that the Supreme Court did not hold that the
8 federal courts had no jurisdiction at all. 133 S.Ct. at 1065-1069.
The court then considered whether remand was appropriate on any
"equitable ground" including:
(1) the effect or lack thereof on the efficient administration of the estate if the Court recommends [remand or] abstention; (2) extent to which state law issues predominate over bankruptcy issues; (3) difficult or unsettled nature of applicable law; (4) presence of related proceeding commenced in state court or other nonbankruptcy proceeding; (5) jurisdictional basis, if any, other than § 1334; (6) degree of relatedness or remoteness of proceeding to main bankruptcy case; (7) the substance rather than the form of an asserted core proceeding; (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court; (9) the burden on the bankruptcy court's docket; (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties; (11) the existence of a right to a jury trial; (12) the presence in the proceeding of nondebtor parties; (13) comity; and (14) the possibility of prejudice to other parties in the action. Fed. Home Loan Bank of Chicago v. Banc of Am. Securities LLC, 448 B.R. 517, 525 (C.D. Cal. 2011) (citations omitted).
In applying these factors, the bankruptcy court found that they were
mixed, as some favored remand, some were neutral, and others favored
removal. In the end, the court relied on the fact that Ms. Evans' claims
against Defendants arose out of their professional services performed
during C&M's bankruptcy case and thus were directly related to the
9 administration of C&M's estate. The court opined that the burden would be
greater on the state court to hear Ms. Evans' claims since the bankruptcy
court had supervised the bankruptcy case in which the disputed
professional services were performed, and had reviewed Defendants' fee
applications and awarded them fees.
Finally, the court noted that while comity favored remand to the state
court because state law was involved, it determined that comity was offset
by the bankruptcy court's interest in the supervision of matters of
administration of the bankruptcy estate in cases before it. As to Ms. Evans'
right to a jury trial, the bankruptcy court found that her right could be
honored with consent or, absent consent, by trial in the District Court.
The bankruptcy court denied Ms. Evans' motion to remand.
Ms. Evans filed a motion for reconsideration, which the court denied.
C. Defendants' Motion for Summary Judgment
Defendants subsequently filed its MSJ seeking dismissal of all claims
based on claim and issue preclusion. Ms. Evans filed a motion for
judgment on the pleadings.
In February 2018, the bankruptcy court issued its Statement of
Uncontroverted Facts and Conclusions of Law on Defendants' Motion for
Summary Judgment. The court found that Ms. Evans did not have standing
to assert any claims against Defendants that required the existence of an
attorney-client relationship as the uncontroverted facts showed that she did
10 not have an attorney-client relationship with them. The court also found
that all her claims were based upon the services that were provided by
Defendants to C&M and therefore any issue as to the services rendered
were merged into the bankruptcy court's orders approving the fees for
such services.
According to the bankruptcy court, the undisputed facts showed that
if C&M had any objection to Defendants' fees before they were approved, it
had sufficient opportunity to object to them. Further, because the court's
order approving Defendants' final fee application was a final adjudication
of the fees owed to Defendants, claim preclusion applied to bar any claims
of C&M and anyone else against Defendants for legal malpractice and
breach of fiduciary duty. The court also decided that there was no cause of
action for civil conspiracy or racism based on the uncontroverted facts.
The bankruptcy court granted Defendants' MSJ on each claim in
Ms. Evans' complaint and dismissed the adversary proceeding with
prejudice. By separate order, the bankruptcy court denied Ms. Evans'
motion for judgment on the pleadings.
On February 16, 2018, the bankruptcy court entered a judgment
which granted Defendants' MSJ, denied Ms. Evans' motion for judgment on
the pleadings, and dismissed all claims with prejudice. Ms. Evans filed a
timely appeal from the judgment.
11 JURISDICTION
The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334
and 157(b)(1). We have jurisdiction under 28 U.S.C. § 158.
ISSUE
Whether the bankruptcy court abused its discretion by denying
Ms. Evans' motion to remand the State Court Action.
STANDARDS OF REVIEW
We review the bankruptcy court's remand order for abuse of
discretion. United Nat'l Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1111–12
(9th Cir. 2001). A bankruptcy court abuses its discretion if it applies the
wrong legal standard or misapplies the correct legal standard, or if its
factual findings are clearly erroneous. TrafficSchool.com, Inc. v. Edriver Inc.,
653 F.3d 820, 832 (9th Cir. 2011).
The existence of subject matter jurisdiction is a question of law
reviewed de novo. See Atwood v. Fort Peck Tribal Ct. Assiniboine, 513 F.3d
943, 946 (9th Cir.2008). Findings of fact relevant to the bankruptcy court's
determination of subject matter jurisdiction are reviewed for clear error. See
Coyle v. P.T. Garuda Indonesia, 363 F.3d 979, 984 n.7 (9th Cir. 2004). A factual
finding is clearly erroneous if illogical, implausible, or without support in
the record. TrafficSchool.com, Inc., 653 F.3d at 832.
We may affirm the decision of the bankruptcy court on any basis
supported by the record. See Hooks v. Kitsap Tenant Support Servs., Inc., 816
12 F.3d 550, 554 (9th Cir. 2016).
DISCUSSION
A. Scope of the appeal
Ms. Evans' notice of appeal (NOA) designates the orders granting
Defendants' MSJ and denying her motion for judgment on the pleadings as
the orders on appeal. However, her opening brief solely addresses the
bankruptcy court's denial of her motion to remand.
Defendants complain that the order denying her motion to remand
was not designated in her NOA. They further contend that Ms. Evans filed
copies of six transcripts from the bankruptcy case, but those transcripts do
not pertain to the hearings at which the bankruptcy court considered and
then denied her motion to remand. According to Defendants, without the
transcripts relating to the remand, we cannot properly conduct the
applicable "abuse of discretion" review and thus dismissal of this appeal or
summary affirmance is proper.
Against this background, we consider the scope of this appeal and
whether dismissal or summary affirmance is proper.
Although Ms. Evans did not designate the order denying her motion
to remand in her NOA, denial of a motion to remand is an interlocutory
order. She was not required to seek interlocutory review of the denial of
her motion to remand in order to preserve the issue on appeal. Instead,
Ms. Evans' appeal of the final judgment in this matter drew in the denial of
13 her motion to remand. Harvey v. Waldron, 210 F.3d 1008, 1012 (9th Cir. 2000)
("An appeal from a final judgment draws in question all earlier, non-final
orders and rulings which produced the judgment.") (internal quotation
marks and citation omitted); Roque v. Yniguez (In re Roque), BAP No.
EC-13-1048-KiPaJu, 2014 WL 351424, at *5 (9th Cir. BAP Jan. 31, 2014)
("Consequently, the [earlier interlocutory orders] merged into the final MSJ
Order. As such, they can be challenged on appeal. This is true even though
these orders were not designated in [appellant's] notice of appeal.").
Accordingly, the bankruptcy court's denial of Ms. Evans motion to remand
is properly before us.
Further, while Defendants contend that we should consider dismissal
or summary affirmance due to the absence of the transcripts pertaining to
remand, we have cautioned that the "appellee stands on tenuous footing
when arguing that a record is too incomplete to permit appellate review
because while the assembly of the record is appellant's duty, appellate
rules allow appellees to participate in the designation of portions of
transcripts and other parts of the record." Kyle v. Dye (In re Kyle), 317 B.R.
390, 394 (9th Cir. BAP2004), aff'd, 170 F. App'x 457 (9th Cir.2006) (citations
omitted). Likewise, an appellee is authorized to file excerpts of record in an
appendix "which contains material required to be included by the appellant
but omitted by appellant." Id. (citing Rule 8009(b)).
In any event, we have discretion to dismiss an appeal or summarily
14 affirm a bankruptcy court's ruling if the appellant does not provide a
sufficient record to enable us to conduct an informed review. Id. at 393. "We
will exercise our discretion to examine what record we have been
provided. In doing so, we look for any plausible basis upon which the
bankruptcy court might have exercised its discretion to do what it did. If
we find any such basis, then we must affirm." McCarthy v. Marth-Helen
Prince (In re McCarthy), 230 B.R. 414, 418 (9th Cir. BAP 1999). We conclude
that we can conduct an informed review with the record provided.
Lastly, we are mindful of Ms. Evans' pro se status and have thus
liberally construed her pleadings. Kashani v. Fulton (In re Kashani), 190 B.R.
875, 883 (9th Cir. BAP 1995). But even under a liberal construction, we
discerned no specific or distinct legal arguments in her opening brief
alleging any errors in connection with the grant of Defendants' MSJ or the
denial of her motion for judgment on the pleadings. Accordingly, those
arguments are waived. See Int'l Union of Bricklayers & Allied Craftsman Local
Union No. 20, ALF-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.
1985) ("[W]e will not ordinarily consider matters on appeal that are not
specifically and distinctly raised and argued in appellant's opening brief.");
Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929-30 (9th Cir. 2003) (If an
argument is not properly argued and explained, the argument is waived).
In the end, the only issue before us is whether the bankruptcy court
abused its discretion in denying Ms. Evans' motion to remand.
15 B. Removal: Jurisdiction of the Bankruptcy Court
The removal of claims related to bankruptcy cases is governed by 28
U.S.C. § 1452(a) which provides:
(a) A party may remove any claim or cause of action in a civil action . . . to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.
The burden of establishing federal jurisdiction for purposes of
removal is on the party seeking removal, and the removal statute is strictly
construed against removal jurisdiction. Cal.ex rel. Lockyer v. Dynegy, Inc.,
375 F.3d 831, 838, amended by 387 F.3d 966 (9th Cir. 2004); Nishimoto v.
Federman–Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir.1990) (The
"strong presumption" against removal jurisdiction means that the
defendant always has the burden of establishing that removal is proper).
"Federal jurisdiction must be rejected if there is any doubt as to the right of
removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992).
"The removal statute, 28 U.S.C. § 1452(a), expressly refers to the
bankruptcy court's subject matter jurisdiction under 28 U.S.C. § 1334, and
also refers to removal to the 'district where such civil action is pending.'
Therefore, proper removal must always, initially, involve the establishment
of jurisdiction through the filing of a petition, and those acts are
intertwined." Miller v. Cardinale (In re Deville), 280 B.R. 483, 496 (9th Cir.
16 BAP 2002).
Here, once C&M filed its bankruptcy petition, the bankruptcy court's
subject matter jurisdiction attached under 28 U.S.C. § 1334(a). Sundquist v.
Bank. of Am. (In re Sundquist), 576 B.R. 858, 871 (Bankr. E.D. Cal. 2017).
Bankruptcy jurisdiction also extends to cases under title 11, and to civil
proceedings arising under title 11 or arising in or related to cases under
title 11. See 28 U.S.C. § 1334(b). Post-petition claims against court-appointed
professionals are considered core proceedings "arising in title 11." See
Schultze v. Chandler, 765 F.3d 945, 948-49 (9th Cir. 2014) (citing Walsh v. Nw.
Nat'l Ins. Co. of Milwaukee, Wis. (In re Ferrante), 51 F.3d 1473, 1476 (9th Cir.
1995)(post-petition breach of fiduciary claim against a trustee was a core
proceeding) and Maitland v. Mitchell (In re Harris Pine Mills), 44 F.3d 1431,
1438 (9th Cir. 1995)(post-petition state-law claim against a bankruptcy
trustee arising out of the sale of estate property was a core proceeding)).
Schultze is factually similar to the instant case. There, the Ninth
Circuit found that a malpractice action involving the attorney for the
unsecured creditors' committee was a "core" matter arising in title 11 under
28 U.S.C. § 1334(b) because (1) the employment of the attorney for the
creditors' committee was approved by the bankruptcy court and governed
by § 1103; (2) his compensation was approved by the bankruptcy court
which was governed by §§ 328, 330, 331; (3) his duties pertained solely to
the administration of the estate; and (4) the claims asserted by the plaintiffs
17 were based solely on acts that occurred during the administration of the
estate. Schultze, 765 F.3d at 949.
The plaintiffs argued that their claim did not invoke any right created
by federal bankruptcy law or involve the administration of the debtor's
estate. The Ninth Circuit dismissed this argument, stating:
However, 'arising in' jurisdiction does not require that the matter be 'based on any right expressly created by title 11.' Instead, the matter must 'have no existence outside of the bankruptcy' case. That is the case here. The basis for the claim occurred within the administration of the estate. Any alleged duties arose from obligations created under bankruptcy law. The claims have effectively called into question the administration of the estate. Thus, this particular legal malpractice claim is inseparable from the bankruptcy case.
Id. (citations omitted). The Ninth Circuit affirmed the district court's
determination that the bankruptcy court had jurisdiction over the lawsuit
as a core proceeding and thus properly denied the plaintiffs' motion to
remand.
The Ninth Circuit's analysis is applicable to the facts and
circumstances of this case. The bankruptcy court approved the
employment of Defendants as chapter 11 counsel for C&M, their
compensation was approved by the bankruptcy court and governed by
§§ 329, 330, and 331, and their duties pertained solely to the administration
of the estate.
18 Further, core matters concern the "administration of the estate" and
"other proceedings affecting the liquidation of the assets of the estate."
28 U.S.C. § 157(b)(2)(A) and (O). These matters were at issue in the State
Court Action. The claims asserted by Ms. Evans against Defendants in the
State Court Action were based solely on acts that occurred during the
administration of C&M's estate, including the liquidation of its properties.
Ms. Evans alleged, among other things, that Defendants missed the
deadline for filing a plan of reorganization, improperly liquidated C&M's
properties instead of reorganizing them, failed to fully inform her about the
dismissal of the case, and failed to release funds held in Defendants' client
trust account in violation of the Dismissal Order. The "racism" she
complained about also occurred in the bankruptcy court allegedly due to
the bankruptcy judge's bias.
As in Schultz, this is not just a malpractice case like any other
professional malpractice litigation that Ms. Evans might pursue—her
claims against Defendants are inseparable from C&M's bankruptcy case.
Accordingly, on this record, we conclude that the bankruptcy court had
jurisdiction over the State Court Action and thus did not err in denying
Ms. Evans' motion to remand based on lack of jurisdiction.
Ms. Evans does not mention any specific errors with respect to the
bankruptcy court's factual findings on equitable remand in her opening
brief. "Our circuit has repeatedly admonished that we cannot 'manufacture
19 arguments for an appellant' and therefore we will not consider any claims
that were not actually argued in appellant's opening brief." Greenwood v.
Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994); see also Indep. Towers of
Wash., 350 F.3d at 929-30.
CONCLUSION
For the reasons explained above, we AFFIRM the judgment and
orders on appeal.