1 JS-6 2 3 4 5 6 7 10 11 PHILIP ORAN DODSON, Case No. 2:19-cv-04706-FLA 12 Appellant, BK Case No: 9:19-bk-10019-DS 13 v. 14 ORDER DISMISSING APPEAL NEVERS, PALAZZO, PACKARD, 16 Appellee. 17 18 20 The court dismisses Appellant Philip Oran Dodson’s (“Dodson” or 21 “Appellant”) bankruptcy action in Case No. 2:19-cv-04706-FLA (“Case 19-4706”) 22 with prejudice for failure to prosecute and for failure to demonstrate this action should 23 not be dismissed as duplicative of the bankruptcy action in Case No. 2:19-cv-06165- 24 VAP (“Case 19-6165”). 26 This appeal arises in connection with Appellant Philip Oran Dodson’s 27 (“Dodson” or “Appellant”) bankruptcy action in the United States Bankruptcy Court 28 for the Central District of California, Case No. 9:19-bk-10019-DS (the “Bankruptcy 1 Action” or “Case 19-bk-10019”). On May 15, 2019, the Honorable Deborah J. 2 Saltzman issued an order (the “Bankruptcy Order”) denying Appellant’s Motion to 3 Avoid Lien against Appellee Nevers, Palazzo, Pickard, Wildemuth & Wynner, PC 4 (“NPPWW” or “Appellee”). Case 19-bk-10019 Dkt. 60. On May 28, 2019, 5 Appellant submitted a Notice of Appeal and Statement of Election to U.S. District 6 Court, and the appeal was assigned to the Honorable Virginia A. Phillips as Case 19- 7 4706. Case 19-bk-10019 Dkt. 64, 66; Case 19-4706 Dkt. 1-3. 8 On July 17, 2019, Appellant filed a second Notice of Appeal and Statement of 9 Election regarding the Bankruptcy Order, and the second action was assigned to the 10 Honorable Dale S. Fischer as Case 19-6165. Both Case 19-4706 and Case 19-6165 11 involve the same Bankruptcy Order, issues, and parties. Compare Case 19-bk-10019 12 Dkt. 70 at 1-2 with id. Dkt. 90 at 1. On August 29, 2019, the court related Case 19- 13 4706 and Case 19-6165 and transferred Case 19-6165 to Judge Phillips for all further 14 proceedings. 15 Appellant filed a Motion to Consolidate Case 19-4706 with Case 19-6165 on 16 September 2, 2019. Case 19-6165 Dkt. 10. Appellant only filed this motion in Case 17 19-6165 and did not file the motion in Case 19-4706, which was the earlier-filed case. 18 On September 12, 2019, the court struck Appellant’s Motion to Consolidate for 19 deficiencies in the Notice. Case 19-6165 Dkt. 11, 14. Appellant did not re-file the 20 Motion to Consolidate and these two actions remain separate. 21 On September 17, 2019, Appellee filed a Motion to Dismiss in Case 19-6165, 22 requesting the court dismiss the appeal as moot and for Appellant’s failure to 23 prosecute the appeal. Case 19-6165 Dkt. 17. Appellee did not file this motion or any 24 similar motion in Case 19-4706. Appellant did not file an opposition. Judge Phillips 25 granted Appellee’s Motion to Dismiss on October 11, 2019, dismissed Case 19-6165, 26 and entered Judgment against Appellant Dodson, finding he had failed to prosecute 27 the appeal. Case 19-6165 Dkt. 19, 20. Appellant appealed the Judgment on 28 1 November 14, 2019 to the Ninth Circuit, and the appeal of the dismissal was given 2 case number 19-56325 (“9th Cir. Case 19-56325”). 3 On September 22, 2020, Judge Phillips issued a minute order in this action, 4 Case 19-4706, noting Appellant failed to file a transcript of the relevant portions of 5 the proceedings in the Bankruptcy Action or a certificate stating the Appellant is not 6 ordering a transcript. Case 19-4706 Dkt. 9. The court ordered Appellant to show 7 cause in writing, on or before September 29, 2020, why this appeal should not be 8 dismissed for lack of prosecution, adding that no further response to the order to show 9 cause was necessary if the required action was taken. Id. Appellant filed a copy of 10 the transcript on September 28, 2020, and the court did not take any further action on 11 the September 22, 2020 Order to Show Cause. Case 19-4706 Dkt. 11. 12 Case 19-4706 was transferred to this court on January 5, 2021. Case 19-4706 13 Dkt. 14. On March 17, 2021, the court ordered Appellant to show cause in writing 14 (“OSC”) why this appeal should not be dismissed for failure to prosecute and as 15 duplicative of the appeal in Case 19-6165. Dkt. 15. Appellant filed a response to the 16 OSC on April 1, 2021, requesting the court stay its proceedings pending determination 17 of the appeal pending before the Ninth Circuit in 9th Cir. Case 19-56325 and arguing 18 that a determination by the Ninth Circuit may resolve all issues pending before this 19 court or may significantly reduce the issues to be determined by this court. Dkt. 16. 20 The Ninth Circuit affirmed the dismissal of Case 19-6165 on April 28, 2021 21 and issued its Mandate on May 20, 2021. 9th Cir. Case 19-56325 Dkts. 27-28. 23 The action before the court, Case 19-4706, involves the same parties, same 24 issues, and the same Bankruptcy Order as Case 19-6165. Judge Phillips dismissed 25 Case 19-6165 on October 11, 2019 for failure to prosecute, and the dismissal was 26 affirmed by the Ninth Circuit on May 20, 2011. 9th Cir. Case 19-56325 Dkts. 27-28. 27 If the plaintiff fails to prosecute or to comply with these rules or a 28 court order, a defendant may move to dismiss the action or any 1 claim against it. Unless the dismissal order states otherwise, a 2 dismissal under this subdivision (b) and any dismissal not under this 3 rule--except one for lack of jurisdiction, improper venue, or failure 4 to join a party under Rule 19--operates as an adjudication on the 5 merits. 6 Fed. R. Civ. P. 41(b) (Involuntary Dismissal). Federal trial courts have undisputable 7 authority to dismiss actions with prejudice for a plaintiff or appellant’s failure to 8 prosecute. Link v. Wabash R. Co., 370 U.S. 626, 629 (1962). 9 Judge Phillips’ October 11, 2019 order states: 10 Debtor has failed to file his Designation of Record and Statement of 11 Issues on Appeal within the requisite time period and has otherwise 12 failed to prosecute the current appeal. Accordingly, the Court 13 dismisses Debtor’s appeal. 14 The Court need not address Appellee’s arguments regarding 15 mootness because Debtor’s failure to prosecute this appeal is 16 dispositive. 17 Case 19-6165 Dkt. 20. 18 As the October 11, 2019 Order does not state it is without prejudice or that it 19 does not operate as an adjudication on the merits, the Order constitutes a final 20 determination on the merits of the issues involved in the appeal. Accordingly, it 21 would be improper for the action to allow the appeal to proceed in Case 19-4706 22 before this court. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505- 23 06 (holding the effect of the “adjudication upon the merits” default provision of Rule 24 41(b), unlike a dismissal “without prejudice” bars the refiling of the same claim in the 25 same court). 26 In his response to the OSC, Appellant requested the court stay its proceedings 27 pending determination of the matter before the Ninth Circuit “as a determination by 28 the Ninth Circuit may resolve all issues pending before this court or may significantly 1 reduce the issues to be determined by This Court.” Dkt. 16 at 4. Appellant has not 2 filed any documents in Case 19-4706 since the Ninth Circuit issued its ruling on April 3 28, 2021. 4 Appellant did not address this court’s question regarding why the court should 5 not dismiss this action as duplicative of Case 19-6165 and the related appeal or 6 offered any legal authority to support the proposition that an appeal regarding the 7 same parties, same issues, and same court order may be properly before the court in 8 two different actions. Accordingly, the court finds the October 11, 2019 Order, as 9 affirmed by the Ninth Circuit, is dispositive of the issues before the court in Case 19- 10 4706.
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1 JS-6 2 3 4 5 6 7 10 11 PHILIP ORAN DODSON, Case No. 2:19-cv-04706-FLA 12 Appellant, BK Case No: 9:19-bk-10019-DS 13 v. 14 ORDER DISMISSING APPEAL NEVERS, PALAZZO, PACKARD, 16 Appellee. 17 18 20 The court dismisses Appellant Philip Oran Dodson’s (“Dodson” or 21 “Appellant”) bankruptcy action in Case No. 2:19-cv-04706-FLA (“Case 19-4706”) 22 with prejudice for failure to prosecute and for failure to demonstrate this action should 23 not be dismissed as duplicative of the bankruptcy action in Case No. 2:19-cv-06165- 24 VAP (“Case 19-6165”). 26 This appeal arises in connection with Appellant Philip Oran Dodson’s 27 (“Dodson” or “Appellant”) bankruptcy action in the United States Bankruptcy Court 28 for the Central District of California, Case No. 9:19-bk-10019-DS (the “Bankruptcy 1 Action” or “Case 19-bk-10019”). On May 15, 2019, the Honorable Deborah J. 2 Saltzman issued an order (the “Bankruptcy Order”) denying Appellant’s Motion to 3 Avoid Lien against Appellee Nevers, Palazzo, Pickard, Wildemuth & Wynner, PC 4 (“NPPWW” or “Appellee”). Case 19-bk-10019 Dkt. 60. On May 28, 2019, 5 Appellant submitted a Notice of Appeal and Statement of Election to U.S. District 6 Court, and the appeal was assigned to the Honorable Virginia A. Phillips as Case 19- 7 4706. Case 19-bk-10019 Dkt. 64, 66; Case 19-4706 Dkt. 1-3. 8 On July 17, 2019, Appellant filed a second Notice of Appeal and Statement of 9 Election regarding the Bankruptcy Order, and the second action was assigned to the 10 Honorable Dale S. Fischer as Case 19-6165. Both Case 19-4706 and Case 19-6165 11 involve the same Bankruptcy Order, issues, and parties. Compare Case 19-bk-10019 12 Dkt. 70 at 1-2 with id. Dkt. 90 at 1. On August 29, 2019, the court related Case 19- 13 4706 and Case 19-6165 and transferred Case 19-6165 to Judge Phillips for all further 14 proceedings. 15 Appellant filed a Motion to Consolidate Case 19-4706 with Case 19-6165 on 16 September 2, 2019. Case 19-6165 Dkt. 10. Appellant only filed this motion in Case 17 19-6165 and did not file the motion in Case 19-4706, which was the earlier-filed case. 18 On September 12, 2019, the court struck Appellant’s Motion to Consolidate for 19 deficiencies in the Notice. Case 19-6165 Dkt. 11, 14. Appellant did not re-file the 20 Motion to Consolidate and these two actions remain separate. 21 On September 17, 2019, Appellee filed a Motion to Dismiss in Case 19-6165, 22 requesting the court dismiss the appeal as moot and for Appellant’s failure to 23 prosecute the appeal. Case 19-6165 Dkt. 17. Appellee did not file this motion or any 24 similar motion in Case 19-4706. Appellant did not file an opposition. Judge Phillips 25 granted Appellee’s Motion to Dismiss on October 11, 2019, dismissed Case 19-6165, 26 and entered Judgment against Appellant Dodson, finding he had failed to prosecute 27 the appeal. Case 19-6165 Dkt. 19, 20. Appellant appealed the Judgment on 28 1 November 14, 2019 to the Ninth Circuit, and the appeal of the dismissal was given 2 case number 19-56325 (“9th Cir. Case 19-56325”). 3 On September 22, 2020, Judge Phillips issued a minute order in this action, 4 Case 19-4706, noting Appellant failed to file a transcript of the relevant portions of 5 the proceedings in the Bankruptcy Action or a certificate stating the Appellant is not 6 ordering a transcript. Case 19-4706 Dkt. 9. The court ordered Appellant to show 7 cause in writing, on or before September 29, 2020, why this appeal should not be 8 dismissed for lack of prosecution, adding that no further response to the order to show 9 cause was necessary if the required action was taken. Id. Appellant filed a copy of 10 the transcript on September 28, 2020, and the court did not take any further action on 11 the September 22, 2020 Order to Show Cause. Case 19-4706 Dkt. 11. 12 Case 19-4706 was transferred to this court on January 5, 2021. Case 19-4706 13 Dkt. 14. On March 17, 2021, the court ordered Appellant to show cause in writing 14 (“OSC”) why this appeal should not be dismissed for failure to prosecute and as 15 duplicative of the appeal in Case 19-6165. Dkt. 15. Appellant filed a response to the 16 OSC on April 1, 2021, requesting the court stay its proceedings pending determination 17 of the appeal pending before the Ninth Circuit in 9th Cir. Case 19-56325 and arguing 18 that a determination by the Ninth Circuit may resolve all issues pending before this 19 court or may significantly reduce the issues to be determined by this court. Dkt. 16. 20 The Ninth Circuit affirmed the dismissal of Case 19-6165 on April 28, 2021 21 and issued its Mandate on May 20, 2021. 9th Cir. Case 19-56325 Dkts. 27-28. 23 The action before the court, Case 19-4706, involves the same parties, same 24 issues, and the same Bankruptcy Order as Case 19-6165. Judge Phillips dismissed 25 Case 19-6165 on October 11, 2019 for failure to prosecute, and the dismissal was 26 affirmed by the Ninth Circuit on May 20, 2011. 9th Cir. Case 19-56325 Dkts. 27-28. 27 If the plaintiff fails to prosecute or to comply with these rules or a 28 court order, a defendant may move to dismiss the action or any 1 claim against it. Unless the dismissal order states otherwise, a 2 dismissal under this subdivision (b) and any dismissal not under this 3 rule--except one for lack of jurisdiction, improper venue, or failure 4 to join a party under Rule 19--operates as an adjudication on the 5 merits. 6 Fed. R. Civ. P. 41(b) (Involuntary Dismissal). Federal trial courts have undisputable 7 authority to dismiss actions with prejudice for a plaintiff or appellant’s failure to 8 prosecute. Link v. Wabash R. Co., 370 U.S. 626, 629 (1962). 9 Judge Phillips’ October 11, 2019 order states: 10 Debtor has failed to file his Designation of Record and Statement of 11 Issues on Appeal within the requisite time period and has otherwise 12 failed to prosecute the current appeal. Accordingly, the Court 13 dismisses Debtor’s appeal. 14 The Court need not address Appellee’s arguments regarding 15 mootness because Debtor’s failure to prosecute this appeal is 16 dispositive. 17 Case 19-6165 Dkt. 20. 18 As the October 11, 2019 Order does not state it is without prejudice or that it 19 does not operate as an adjudication on the merits, the Order constitutes a final 20 determination on the merits of the issues involved in the appeal. Accordingly, it 21 would be improper for the action to allow the appeal to proceed in Case 19-4706 22 before this court. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505- 23 06 (holding the effect of the “adjudication upon the merits” default provision of Rule 24 41(b), unlike a dismissal “without prejudice” bars the refiling of the same claim in the 25 same court). 26 In his response to the OSC, Appellant requested the court stay its proceedings 27 pending determination of the matter before the Ninth Circuit “as a determination by 28 the Ninth Circuit may resolve all issues pending before this court or may significantly 1 reduce the issues to be determined by This Court.” Dkt. 16 at 4. Appellant has not 2 filed any documents in Case 19-4706 since the Ninth Circuit issued its ruling on April 3 28, 2021. 4 Appellant did not address this court’s question regarding why the court should 5 not dismiss this action as duplicative of Case 19-6165 and the related appeal or 6 offered any legal authority to support the proposition that an appeal regarding the 7 same parties, same issues, and same court order may be properly before the court in 8 two different actions. Accordingly, the court finds the October 11, 2019 Order, as 9 affirmed by the Ninth Circuit, is dispositive of the issues before the court in Case 19- 10 4706. 11 Furthermore, Appellant’s lack of prosecution of this action constitutes 12 independent grounds to dismiss this appeal. Although this action has been pending in 13 this court for two years, Appellant has not filed any papers since filing a Designation 14 of Record on Appeal and Transcript Order on September 28, 2020, aside from his 15 response to the OSC. See Case 19-4706 Dkts. 10-11, 16. Despite requesting the court 16 stay this action pending the Ninth Circuit’s ruling in 9th Cir. Case 19-56325, 17 Appellant did not file notice of the Ninth Circuit’s ruling or provide any indication 18 that he intends to litigate this action diligently. See Fed. R. Civ. P. 41(b). The court, 19 therefore, exercises its authority to dismiss this action on this additional basis. See 20 Link, 370 U.S. at 629. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 2 For the reasons stated above, the court dismisses Appellant’s appeal in Case 19- 3 | 4706 with prejudice for failure to prosecute and for failure to demonstrate that this 4 | action is not duplicative of Case 19-6165. 6 7 | Dated: June 15, 2021
9 FERN L. AENLLE-ROCHA 10 United States District Judge
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