FILED JUN 24 2022 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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. SC-21-1151-SFB THOMAS OLIVER, SC-21-1182-SFB Debtor. (Related Appeals)
THOMAS OLIVER, Bk. No. 20-01053-LA7 Appellant, v. Adv. No. 20-90093-LA
UNITED STATES TRUSTEE, MEMORANDUM* Appellee.
Appeal from the United States Bankruptcy Court for the Southern District of California Louise Decarl Adler, Bankruptcy Judge, Presiding
Before: SPRAKER, FARIS, and BRAND, Bankruptcy Judges.
INTRODUCTION
Thomas Oliver voluntarily filed his chapter 7 1 petition in the hopes of
defeating a disputed judgment debt. In his bankruptcy filings, he claimed
* 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
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. 1 to have virtually no non-exempt assets available for distribution. But the
United States Trustee (“UST”) commenced an adversary proceeding
against Oliver objecting to his discharge for allegedly transferring assets
with the intent to hinder, delay, or defraud creditors within a year of
bankruptcy under § 727(a)(2)(A) and for allegedly making false statements
under oath under § 727(a)(4). Based on his refusal to cooperate in the
discovery process, the bankruptcy court struck Oliver’s answer and
granted a default judgment denying him a discharge. Oliver appeals both
the sanctions order and entry of the default judgment. Additionally, he
appeals the denial of his motion to recuse the bankruptcy judge.
Oliver contends that the judgment denying him a chapter 7 discharge
is the result of a vast conspiracy perpetrated against him by both state and
federal courts as well as the U.S. Department of Justice. This appeal is
limited to the bankruptcy court’s judgment denying his discharge and the
rulings leading to that judgment. Having reviewed the record, we conclude
that the bankruptcy court correctly applied the law regarding terminating
sanctions, entry of default judgments, and denial of discharge. It also
correctly denied Oliver’s recusal motion. Nor were any of these rulings the
result of clearly erroneous factual findings. We AFFIRM.
2 FACTS 2
A. Oliver’s bankruptcy filing and the UST’s adversary complaint.
In February 2020, Oliver voluntarily filed his chapter 7 petition.
Several months later, the UST filed a complaint objecting to Oliver’s
discharge under § 727(a)(4)(A) and (a)(2)(A). The UST alleged that Oliver
knowingly and fraudulently omitted from his schedules and the Statement
of Financial Affairs (“SOFA”): (1) a bank account in his mother’s name that
he used for his own personal income and expenses; (2) his interest in and
right to royalties from a book; and (3) the conveyance of a rental property
located in Rhode Island to his mother and the recording of that deed.
In his schedules, all but $200 of his listed assets were claimed as
exempt. He did not disclose any ownership interest in real property, bank
accounts, or books that he had authored. As for creditors, he listed a single
debt; a disputed judgment for $32,913.30 entered in favor of Alyssa Parent
D.B.A. Sun Days Tanning. Oliver has stated that the judgment was entered
against him by a state court in Massachusetts.
In his Schedule I and his SOFA, Oliver identified a significant
amount of rental income, but he did not specify the source of that income.
He further indicated that Parent was in the process of domesticating and
enforcing her “fraudulent” judgment against the Rhode Island rental
2 We exercise our discretion to take judicial notice of documents filed in Oliver’s bankruptcy case and in the related adversary proceeding. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).
3 property. As he put it, Parent was “trying to steal” that property. He
further stated in his SOFA that he had not owned the Rhode Island
property since 2014. The UST alleged in the complaint, however, that
Oliver signed the deed, and his signature was acknowledged, on January
31, 2020. The UST further alleged that Oliver’s deed to his mother
conveying the Rhode Island property was recorded on February 19, 2020,
several days before Oliver filed his bankruptcy.
In his response to question 18 of the SOFA, he stated that he had not
sold, traded, or otherwise transferred any interest in property within two
years of his bankruptcy.
The UST also alleged that Oliver testified under oath at his § 343
examination that he never owned a parcel of rental property in West Palm
Beach, Florida formerly owned by his father. According to the complaint,
Oliver’s examination testimony was knowingly and fraudulently false. The
complaint referenced an alleged 2017 Warranty Deed executed by Oliver’s
father that granted Oliver the residual interest in the Florida property upon
his father’s death. The UST alleged that Oliver’s father passed away shortly
after the alleged deed was executed. The complaint further referenced a
second Warranty Deed executed in January 2018 conveying title to the
Florida property from Oliver to his mother.
Oliver filed an answer to the complaint. It did not admit or deny the
UST’s allegations but opined that the UST’s objection to his discharge was
“frivolous.”
4 B. The discovery disputes.
During the course of the litigation, the UST twice moved to compel
Oliver to comply with discovery requirements. These motions led to three
orders, two awards of monetary sanctions against him, and ultimately to
the order striking his answer and entering his default.
The bankruptcy court’s order granting the first motion to compel
directed Oliver to provide the UST with contact information for four
witnesses he identified in his initial disclosures. Because Oliver had stated
that he was not in contact with his witnesses, the court alternately allowed
him to provide similar information for the third-party intermediary Oliver
said had provided him with affidavits executed by those witnesses. The
order also required Oliver to deliver to the UST complete versions of
several documents he had turned over as part of the disclosure that were
missing pages. As with the witnesses, the court provided Oliver with an
alternative means of compliance if he could not obtain the missing pages:
he could provide a declaration attesting to his efforts to obtain them. The
court awarded $2,199.00 in monetary sanctions against Oliver to be paid to
the UST within 30 days.
The UST filed a second motion to compel Oliver to respond to its
written discovery requests. It also contended that Oliver was not
cooperating with finding a mutually agreeable time and date for his
deposition. Oliver had provided two dates for his deposition but proposed
that it occur between “7 pm to 10 pm.” Oliver failed to file an opposition to
5 the second motion to compel. Before the hearing, the UST filed a status
report advising the court that it had received responses to its
interrogatories and requests for production from Oliver, but they were
insufficient. The UST also attached an email from Oliver dated December
18, 2020, to its counsel that stated, “as i said previously, i am available for
deposition dec 18 and 19 from 10am to 7 pm.” The deposition did not
occur. Oliver maintained that he previously emailed the UST agreeing to be
deposed at those dates and times. The UST denied that Oliver sent any
email agreeing to be deposed during business hours prior to December 18,
2020. 3
Against this backdrop, the court held a hearing on the UST’s second
motion to compel on January 14, 2021. Though Oliver had not filed a
written opposition, he appeared at the hearing and advised the court that
he opposed the motion. The court heard from Oliver but granted the
motion as unopposed for lack of a written opposition. The court imposed
$3,582.55 in monetary sanctions to be paid within 30 days.4 In its order
granting this motion to compel, the court ruled that Oliver needed to
3 Roughly two months later, in his opposition to one of the UST’s motions to extend discovery deadlines, Oliver presented an email dated November 24, 2020, for the first time to the court. At the end of the email, there is the following statement: “and as i said previously, i am available for deposition dec 18 and 19 from 10 am to 7 pm.” The bankruptcy court found that Oliver’s version of this email was fabricated. Oliver challenges this finding as well. 4 Oliver later stated in his papers that he had no money to pay any sanctions but
would not have paid them even if he did because he viewed both sanctions orders as unjust and fraudulently imposed. 6 submit full and complete responses to the UST’s written discovery. The
record does not show that Oliver ever provided the UST with additional,
complete responses to its discovery requests. More importantly, the court
ordered: “The Defendant shall appear for deposition on February 12, 2021
at 9:00 am at the offices of Esquire Court Reporting, 402 West Broadway,
Suite 1550, San Diego, CA 92101.” He failed to do so.
On February 9, 2021, shortly before his scheduled deposition, Oliver
filed a motion for the bankruptcy judge to recuse herself from the
adversary proceeding. The court denied the motion.
After Oliver failed to appear for his deposition, the UST filed an ex
parte application for order shortening time for a hearing on a motion to
extend the discovery cutoff date. In the application and the extension
motion, the UST asserted that Oliver had failed to attend his deposition
and still had not provided full and complete responses to the UST’s written
discovery. The court granted the ex parte application and set the extension
motion for hearing on shortened time.
Oliver was served with, and opposed, the extension motion. He
stated that he would not attend the deposition without an attorney or
witness. He also expressed health concerns associated with the pandemic.
He maintained that a Chief Judge Order entered in March 2020 for the U.S.
District Court for the Southern District of California (“Chief Judge Order”)
that “excused” in-person appearances for court proceedings, hearings, and
conferences also excused his attendance at the deposition.
7 At the April 1, 2021 hearing on the UST’s extension motion, Oliver
restated his concern that the deposition should be taken virtually. The UST
explained that Oliver’s deposition was always intended, and scheduled, to
be a virtual deposition but he was required to appear at the court reporter’s
office where he would be put into a conference room for the deposition.
The UST’s counsel advised the court and Oliver that no one else would be
in that room with him during his deposition. Counsel further explained
that she would participate virtually.
The court accepted that Oliver apparently misunderstood what was
intended as far as the arrangements for the deposition. It proceeded to
“reset” his deposition. The court then told Oliver:
I will order that the deposition be held virtually and I will order that you have your own personal room at the court reporter’s office and that the deposition be held virtually by Ms. Miheilic setting up the appropriate call via Zoom or whatever she’s going to use to do it, and the deposition goes forward at that time, at a reasonable hour, preferably 10:00 a.m., but it could be at -- I don’t know how long Ms. Mihelic is planning to have for the deposition, but normally we allow a day.
The court asked Oliver if this was acceptable. Oliver then renewed his
concern that he needed a witness to attend the deposition with him to
prevent the other participants from doctoring the results of the deposition.
After explaining the precautions and safeguards designed to ensure the
accuracy and reliability of deposition transcripts, the court asked the UST
whether it objected to a witness attending the deposition in the room with
8 Oliver. The UST agreed so long as the witness was merely observing and
not participating in the deposition.
The court then discussed the date and time for the deposition and
suggested April 19, 2021, at 10:00 a.m. The parties agreed, though Oliver
informed the court he needed to find a witness who would be available
then. The court asked that Oliver inform the UST by the next day if there
was a problem finding someone to witness the deposition as scheduled.
The court then told the litigants, “I'm going to make an order today that the
deposition is to be held April 19, 2021, at 10:00 a.m., at the office of the
court reporter.” Again, the court reiterated that the deposition would be
“at the court reporter” on April 19, 2021. The court also directed the UST to
file a status report no later than April 22, 2021, to let the court know
whether the deposition occurred as ordered. Before concluding the matter,
the court asked, “Mr. Oliver, we’re clear, are we now, what your
obligations are versus her [Mihelic’s] obligations?” Oliver responded, “I
believe so.”
Consistent with the court’s rulings at the hearing, the court issued a
minute order that same day providing:
Hearing continued to 4/29/21 at 2:00[.] The discovery deadlines for the UST is [sic] extended to 5/1/21 per the tentative ruling. The deposition to be held virtual in the Court Reporter office on 4/19/21 at 10:00 a.m.
Mr. Oliver has the court’s permission to have a witness/friend with him at the deposition.
9 Mr. Oliver to let Ms. Mihelic know by tomorrow if his witness/friend is available for 4/19/21.
The UST to file a status report to be filed by 4/22/21 informing the court if the deposition has been completed. Order to be prepared by Ms. Mihelic.
There is no evidence in the record that Oliver informed the UST by
April 2, 2021, that his witness was unavailable for the April 19, 2021
deposition.
The UST filed the required status report and informed the court that
Oliver did not appear at the court reporter’s office for the deposition as
ordered. Oliver responded to the UST’s status report. He pointed out that
he emailed the UST questioning why he had to appear in person at the
court reporter’s office but received no response. He further stated that the
morning of the scheduled deposition he emailed the UST, “in order to not
inconvenience my friend, i'm am [sic] preparing to conduct the deposition
remotely where i live.” That email also requested video conference
instructions so that he could be deposed from home. In his response to the
status report, Oliver stated that he informed the UST that he was willing to
begin the virtual deposition from his home up until noon that day.
The UST attached the email string referenced above to its motion for
terminating sanctions. The email string shows that Oliver sent the emails
described above, including an email he sent to the UST roughly 30 minutes
before the deposition was scheduled to start informing the UST that he 10 wanted to be deposed from his house. The string also includes the UST’s
email response telling him that he needed to appear at the court reporter’s
office as ordered by the court. The UST also informed Oliver: “If you do
not appear at the court reporter’s office at 10 am today for your deposition,
you will be in violation of at least two court orders, and I will seek
additional sanctions against you.” Oliver responded two minutes later: “i
just don't trust you criminals.”
The UST’s motion for terminating sanctions pointed out that Oliver
twice failed to appear for his deposition as ordered by the court. It also
informed the court that he never complied with the order on the second
motion to compel to provide full and complete responses to the UST’s
written discovery. Nor did he comply with the order requiring him to
supplement his initial disclosures. The UST also noted that Oliver had
never paid any of the monetary sanctions awarded against him. The
motion was supported by the declaration of the UST’s counsel setting out
the factual basis of the motion.
Oliver timely opposed the terminating sanctions motion. He argued
that the court never required his personal attendance at the court reporter’s
office because it used the word “virtual” in its April 1, 2021 minute order.
He also maintained that the court authorized him to renegotiate the
deposition location based upon the court’s ruling on a separate motion
heard that same day. He again argued that the Chief Judge Order excused
his personal attendance at the deposition. In the rest of his response, he
11 largely reiterated points previously made in opposition to the UST’s prior
motions to compel. According to Oliver, he had always complied with the
court’s orders and any failure to complete discovery was the UST’s fault.
Both Oliver and the UST appeared and argued at the hearing on the
terminating sanctions motion. At the conclusion of the hearing the court
granted the motion. It subsequently entered an order striking Oliver’s
answer and entered default against him. Ultimately, the UST applied for
entry of a default judgment. The application was supported by the
allegations set forth in the UST’s complaint, as well as Oliver’s § 343
examination testimony, and copies of documents recorded in Rhode Island.
The court granted the UST’s application and entered a default judgment
denying Oliver his discharge on August 4, 2021.
C. The appeals.
Oliver timely appealed both the terminating sanctions order and the
default judgment.
Prior to filing his notice of appeal of the default judgment, Oliver
filed a document entitled “Objection to ‘application for default judgment’
and the world’s largest crime syndicate’s entry of judgment by default.” If
this filing sought to alter or amend the default judgment under Rule 9023,
it would have rendered any appeal premature pending a ruling. Rule
8002(b). Because Oliver never requested any specific relief in this objection,
the bankruptcy court treated it as a mere statement of displeasure rather
than a formal request for relief. Oliver did not respond to this panel when
12 it inquired regarding the nature of his objection. We, therefore, treat it in
the same manner as the bankruptcy court. Accordingly, Rule 8002(b) does
not apply to Oliver’s August 6, 2021 objection, and the objection did not
prevent the default judgment from becoming final for purposes of his
appeals.
On December 30, 2021, Brian Vukadinovich filed a fifteen-page
document in this appeal. He identifies this document as an Amicus Curiae
brief in support of Oliver’s position on appeal. The filing largely complies
with Rule 8017, and it states that the UST consented to its filing. Though we
have reviewed and considered the filing, it does not specifically address
any of the controlling issues raised in this appeal.
JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
157(b)(2)(J). We have jurisdiction under 28 U.S.C. § 158.
ISSUES
Did the bankruptcy court abuse its discretion in denying Oliver’s
recusal motion?
Did the bankruptcy court abuse its discretion when it granted the
UST relief under Civil Rule 37(b)(2)(A), struck Oliver’s answer, and entered
a default judgment against him?
STANDARD OF REVIEW
We review the denial of a recusal motion for an abuse of discretion.
Hale v. U.S. Tr. (In re Basham), 208 B.R. 926, 930 (9th Cir. BAP 1997). We also
13 review for an abuse of discretion the granting of terminating sanctions.
Seiko Epson Corp. v. Koshkalda, 799 F. App’x 463, 465 (9th Cir. 2019) (citing
Conn. Gen. Life Ins. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th
Cir. 2007)).
A bankruptcy court abuses its discretion if it applies an incorrect
legal rule or its factual findings are illogical, implausible, or without
support in the record. TrafficSchool.com v. Edriver, Inc., 653 F.3d 820, 832 (9th
Cir. 2011).
DISCUSSION
In his opening brief, Oliver addresses two main points: (1) the
bankruptcy court should have recused itself based on its purported bias;
and (2) it should not have imposed terminating sanctions because he
complied with the court’s discovery orders. We examine each of these
points in turn.
A. The bankruptcy court did not abuse its discretion when it denied Oliver’s recusal motion.
Pursuant to 28 U.S.C. § 455 and to Rule 5004(a), Oliver sought to
recuse the presiding bankruptcy judge. The court denied the motion
finding that he failed to demonstrate sufficient cause for recusal. Oliver
challenges that finding.
Rule 5004(a) specifies that 28 U.S.C. § 455(a) governs when a
bankruptcy judge should disqualify himself or herself from an adversary
proceeding or contested matter. In turn, 28 U.S.C. § 455(a) requires a judge
14 to “disqualify [herself] in any proceeding in which [her] impartiality might
reasonably be questioned.” The judge also must recuse herself when she
has a personal bias or prejudice concerning a party. 28 U.S.C. § 455(b)(1).
On the other hand, when a judge’s impression of the party is formed
exclusively from events that transpired in the judicial proceedings in
question, those impressions “do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Liteky v. United
States, 510 U.S. 540, 555 (1994). Similarly, “judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge.” Id. Moreover, “a judge has [a] strong…duty to sit
when there is no legitimate reason to recuse….” Clemens v. U.S. Dist. Ct.,
428 F.3d 1175, 1179 (9th Cir. 2005) (cleaned up). Thus, only in the rarest of
circumstances can the court’s “rulings, opinions formed or statements
made” in the course of proceedings serve as the basis for disqualification.
United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008). 5
5 As Holland elaborated:
We, along with our sister circuits, have identified various matters which will not ordinarily require recusal under 28 U.S.C. § 455:(1) rumor, speculation, beliefs and similar non-factual matters; (2) the mere fact that a judge has previously expressed an opinion on a point of law; (3) prior rulings in the proceeding; (4) mere familiarity with the defendant(s) or the type of charge; (5) baseless personal attacks on or suits against the judge by a party; (6) reporters’ personal opinions or characterizations; and (7) threats or other attempts to intimidate the judge. 15 Oliver offers a host of reasons why he believes the presiding judge
should have recused herself. None required recusal. Oliver initially claims
that the UST and the court engaged in impermissible ex parte contacts
prohibited by Rule 9003. He cites two “ex parte motions” involving
requests to extend time to file and serve other court papers. 6 Ex parte
motions filed on the docket are not the sort of communications Rule 9003
was meant to guard against. See generally In re Vascular Access Ctrs., L.P.,
630 B.R. 137, 158 (Bankr. E.D. Pa. 2021) (explaining that not all ex parte
contacts are forbidden).
Oliver also contends that the court ignored the UST’s purported
fraud and lies and permitted them to go unpunished while criticizing his
litigation conduct. The record does not support the conclusions he attempts
to draw. Improper inferences, unwarranted speculation, inuendo, and
hyperbole are not sufficient to justify recusal. See Holland, 519 F.3d at 914
n.5. Moreover, to the extent the court’s remarks were critical of or favorable
to one side or the other, they were made in the course of the litigation and
are not a proper ground for recusal. Liteky, 510 U.S. at 555.
Oliver points to certain professional organizations to which he
believes the presiding judge and the UST’s staff belonged. More generally,
he claims that the court and the UST “manipulated the record.” There is no
519 F.3d at 914 n.5 (cleaned up). 6 See S.D. Cal Local Rule (“LBR”) 9006-1(d); LBR 9013-3 (authorizing certain ex
parte motions). 16 evidence that the available transcripts and dockets are incomplete or
inaccurate in any material way. Oliver again relies on improper inferences,
unwarranted speculation, inuendo, and hyperbole, which are insufficient
to justify recusal. See Holland, 519 F.3d at 914 n.5.
Most of Oliver’s remaining points are variations of his complaint that
the court always ruled against him. Oliver lists specific rulings rejecting his
attempts to compel discovery from the UST, and the court’s denial of oral
motions. As we already have noted, only in the rarest of circumstances can
the court’s rulings form a proper basis for recusal. Id. at 914. No
extraordinary circumstances are evident here. Oliver attempts to show bias
by pointing out that the court granted at least two oral motions made by
the UST while denying his. But the UST’s oral motions merely sought
extensions of time whereas Oliver made oral motions seeking substantive
rulings on significant factual and legal issues, including his claimed rights
to trial by jury and appointment of counsel. 7 There is no valid comparison
between the two.
7 Oliver makes much of his jury trial demand, but the adversary proceeding never reached trial so the issue is moot. Even if we were to reach it, there is no right to a jury in a challenge to a debtor’s discharge under § 727. This is because there is no right to jury for matters based in equity. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 55-58 (1989). And “a bankruptcy discharge and questions concerning the dischargeability of certain debts, involve issues with an equitable history and for which there was no entitlement to a jury trial in the courts of England prior to the merger of law and equity.” Schieber v. Hooper (In re Hooper), 112 B.R. 1009, 1012 (9th Cir. BAP 1990). Similarly, Oliver insists that he had an absolute constitutional right to the appointment of counsel. There generally is no right to counsel in civil litigation. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The cases Oliver cites are not to the contrary. Maness v. 17 Finally, Oliver next contends that the court wrongly permitted the
UST to draft many of the orders it entered in the adversary proceeding. It is
standard practice in many districts for the court to direct the prevailing
party to prepare drafts of proposed orders. This practice is adopted by
local rule in the Southern District of California Bankruptcy Court. See
Bankr. S.D. Cal. R. 7054-2, 9013-10; see also Bankr. C.D. Cal. R. 9021-
1(b)(1)(A) (“Unless the court otherwise directs, a proposed order must be
prepared by the attorney for the prevailing party.”). In short, the fact that
the UST drafted proposed orders and lodged them with the court is not
evidence of either wrongdoing or court bias.
In sum, nothing in Oliver’s appeal briefs persuades us that the
bankruptcy judge was obliged to recuse herself. To the contrary, on this
record, she had a continuing duty to consider and resolve the objection to
discharge action.
B. The bankruptcy court did not abuse its discretion when it entered terminating sanctions against Oliver.
Citing Civil Rule 37(b)(2)(A) and (d), the court struck Oliver’s
answer, entered his default, and ultimately entered a default judgment
denying his discharge. The court found that Oliver had refused to
Meyers, 419 U.S. 449, 455 & n.5 (1975) (state court’s imposition of criminal contempt sanctions against defense counsel in a civil injunction proceeding required counsel); In re G & H Steel Serv., 76 B.R. 508, 509-10 (Bankr. E.D. Pa. 1987) (employment of counsel under § 327(a) and (e)). More importantly, even if the court had erred on these issues, or any other matter raised in the adversary, the remedy is appeal, not recusal.
18 meaningfully participate in discovery and had willfully and repeatedly
violated the court’s discovery orders for the specific purpose of frustrating
the UST’s legitimate discovery efforts. Citing R&R Sails, Inc. v. Insurance Co.
of Pennsylvania, 673F.3d 1240, 1246 (9th Cir. 2012), the court further noted
that Oliver bore the burden to establish that his non-compliance with his
discovery obligations was either substantially justified or harmless.
According to the court, Oliver failed to meet this burden.
In deciding whether to impose terminating sanctions, the court
considered each of the factors set forth in Fatima v. Stern (In re Fatima), BAP
No. CC–17–1235–LSKu, 2018 WL 2423682, at *4 (9th Cir. BAP May 29,
2018): “(1) the public’s interest in expeditious resolution of litigation; (2) the
court’s need to manage its dockets; (3) the risk of prejudice to the party
seeking sanctions; (4) the public policy favoring disposition of cases on
their merits; and (5) the availability of less drastic sanctions.” Id. (citing
Conn. Gen. Life Ins., 482 F.3d at 1096). After weighing these factors, the
court concluded that it should impose terminating sanctions against Oliver.
Oliver has not pointed to any error in the legal rules the court applied
or the factors it considered. Oliver’s only pertinent arguments concern the
court’s findings. He asserts that the court erred when it found that he failed
to comply with the court’s discovery orders. He alternately argues that his
noncompliance was substantially justified. He contends that to the extent
discovery was not completed, it was the consequence of the court’s and the
UST’s errors, omissions, and malfeasance.
19 The record supports the bankruptcy court’s findings that he failed to
comply with its discovery orders and that his failure was both willful and
in bad faith. He ignored the court’s orders compelling discovery. The
court’s first order required Oliver to provide disclosures of his witnesses
and production of certain incomplete documents. The second order
overruled his objection to the UST’s interrogatories and requests for
production, required full and complete responses, and set his deposition
for a date certain at a specified location. The record does not show that he
complied with either order.
Both the first and second order also imposed monetary sanctions.
Oliver stated that he was not able pay the sanctions, but he also advised the
court that even if he could, he would not pay them.
The court’s April 1, 2021 discovery order was the product of
considered attempts to address Oliver’s stated reasons for not complying
with the prior order specifically requiring his attendance at the previously
scheduled deposition. The court addressed his concerns at length in an
attempt to provide Oliver the opportunity to proceed to trial. He failed to
comply with that order as well. Rather, he unilaterally attempted to change
the requirements the court imposed for his deposition. He did not seek
relief from or clarification of the April 1, 2021 order before doing so.
Rather, he substituted his own judgment and reasoning in place of the
court’s order and has offered excuses after the fact for his noncompliance.
20 In short, he chose not to comply with a specific order compelling his
attendance for deposition for the second time.
The record supports the bankruptcy court’s findings that he willfully
and in bad faith failed to comply with the court’s discovery orders. It does
not support Oliver’s alternate claim that his noncompliance was
substantially justified. When as here a pro se litigant’s conduct
demonstrates a continuing unwillingness to cooperate with legitimate
discovery requests and comply with orders compelling discovery, even
after the court has given the litigant leeway, additional time to comply, and
has utilized lesser alternative sanctions to no effect, the court has discretion
to consider and enter terminating sanctions. See, e.g., Meeks v. Nunez, Case
No. 13CV973-GPC (BGS), 2017 WL 908733, at *6-8 (S.D. Cal. Mar. 8, 2017),
aff'd, 857 F. App’x 949 (9th Cir. 2021); In re Fatima, 2018 WL 2423682, at *5. 8
CONCLUSION
For the reasons set forth above, we AFFIRM the bankruptcy court’s
orders striking Oliver’s answer, entering his default, and granting a default
judgment denying his discharge.
8On February 11, 2022, Oliver filed a motion to strike the UST’s appeal brief. The motion to strike is factually and legally meritless. Accordingly, that motion is hereby ORDERED DENIED.