James Grove v. Sarine Nigolian

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2022
• Docket: 21-55843
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In the Matter of: JAMES ALVIN GROVE, No. 21-55843

Debtor, D.C. No. 8:21-cv-00408-DOC ------------------------------

SARINE NIGOLIAN; GRANT NIGOLIAN, MEMORANDUM*

Plaintiffs-Appellees,

v.

JAMES ALVIN GROVE,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted March 10, 2022** Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and MOLLOY, *** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. Sarine and Grant Nigolian filed an adversary complaint against James Grove,

a Chapter 7 debtor. Although Grove was personally served with the complaint, he

claimed the bankruptcy court lacked personal jurisdiction because the Nigolians

failed to also serve his bankruptcy counsel, Michael Nicastro, as required by Federal

Rule of Bankruptcy Procedure 7004(g). The bankruptcy court granted Grove’s

motion. The district court vacated the dismissal, finding that Grove had waived any

objection to the failure to serve counsel. We review the district court’s decision de

novo, see In re Saxman, 325 F.3d 1168, 1172 (9th Cir. 2003), and may affirm on any

ground supported by the record, see In re Parker N. Am. Corp., 24 F.3d 1145, 1151

(9th Cir. 1994).

Bankruptcy Rule 7004(g) provides that if a “debtor is represented by an

attorney,” service “shall also be made upon the debtor’s attorney by any means

authorized under Rule 5(b) F. R. Civ. P.” Contrary to Grove’s arguments and the

apparent assumption of the bankruptcy court, Rule 7004(g) is not a jurisdictional

provision. See Kontrick v. Ryan, 540 U.S. 443, 453–54 (2004); see also United

Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010). Therefore, the

relevant question is whether Grove was prejudiced by the failure to serve his

bankruptcy counsel. See United Food & Com. Workers Union, Locs. 197 v. Alpha

Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984) (reasoning that dismissal “is generally

not justified absent a showing of prejudice”).

2 There is no evidence that Grove was prejudiced by the failure to serve

bankruptcy counsel. Grove hired another lawyer, Michael Spector, to handle the

adversary complaint. Spector timely filed an answer and participated fully in the

adversary proceedings. There is no indication that those proceedings were delayed

or affected by the failure to serve Nicastro. Indeed, Spector indicated in a July 2020

joint status report, filed over a month before the motion to dismiss, that he would be

ready for trial as soon as October 2020. Because the bankruptcy court erred in

dismissing the adversary complaint, we affirm the district court.

AFFIRMED.