In re: ERLING S. CALKINS and ELAINE S. CALKINS

Opinion

FILED NOV 2 2021 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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 Nos. AZ-20-1059-FLS ERLING S. CALKINS and ELAINE S. AZ-20-1072-FLS CALKINS, AZ-20-1082-FLS Debtors. AZ-20-1252-FLS (Consolidated Appeals) ERLING S. CALKINS, Appellant, Bk. No. 3:13-bk-08354-DPC v. COCONINO COUNTY; COCONINO Adv. No. 3:13-ap-00951-DPC COUNTY PUBLIC HEALTH SERVICES DISTRICT, MEMORANDUM* Appellees.

Appeal from the United States Bankruptcy Court for the District of Arizona Daniel P. Collins, Bankruptcy Judge, Presiding

Before: FARIS, LAFFERTY, and SPRAKER, Bankruptcy Judges.

Appellees Coconino County and Coconino County Public Health

Services District (collectively, the “County”) hold a judgment against

chapter 111 debtors Erling S. Calkins and Elaine S. Calkins arising from

* 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. 1 Unless specified otherwise, all chapter and section references are to the fines for building, health, and safety code violations. After the Calkinses

filed their bankruptcy case, the County commenced an adversary

proceeding for a determination that its claims were nondischargeable, and

the Calkinses filed a counterclaim seeking to avoid the County’s liens on

their property. Mr. Calkins appeals from five orders that together allowed

the County to dismiss its complaint and granted summary judgment for

the County on the counterclaim.

All of Mr. Calkins’ arguments are completely devoid of merit.

The bankruptcy court did not abuse its discretion in granting the

County’s motion to dismiss its own adversary complaint under Civil Rule

41(a)(2), made applicable in adversary proceedings by Rule 7041. The court

properly found that dismissal of the complaint did not prejudice

Mr. Calkins. See Stevedoring Servs. of Am. v. Armilla Int'l B.V., 889 F.2d 919,

921 (9th Cir. 1989) (“The purpose of [Civil Rule 41(a)(2)] is to permit a

plaintiff to dismiss an action without prejudice so long as the defendant

will not be prejudiced or unfairly affected by dismissal.” (citations

omitted)).

The bankruptcy court did not err when it granted the County

summary judgment on Mr. Calkins’ counterclaim under Civil Rule 56,

made applicable in adversary proceedings by Rule 7056. The only relief

Bankruptcy Code, 11 U.S.C. §§ 101-1532, all “Rule” references are to the Federal Rules of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of Civil Procedure.

2 that the counterclaim sought was avoidance of the County’s judgment

liens. Because the County released those liens, the counterclaim was moot.

See Doe No. 1 v. Reed, 697 F.3d 1235, 1238 (9th Cir. 2012) (holding that a case

is moot where there is no “present controversy as to which effective relief

can be granted”). Mr. Calkins apparently wanted the bankruptcy court to

rule on other issues, such as the propriety of the state court judgments

against him. But his counterclaim did not present those other issues (and

he is likely not entitled to relitigate those judgments in any event).

None of his other arguments has any merit. We AFFIRM.