Shmuel Erde v. Carolyn Dye

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2020
• Docket: 19-60062
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: SHMUEL ERDE, No. 19-60062

Debtor. BAP No. 19-1043

------------------------------ MEMORANDUM* SHMUEL ERDE,

Appellant,

v.

CAROLYN A. DYE,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Lafferty, Spraker, and Taylor, Bankruptcy Judges

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Chapter 11 debtor Shmuel Erde appeals pro se from the Bankruptcy

* 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). Appellate Panel’s decision affirming the bankruptcy court’s order sua sponte

dismissing his bankruptcy case and imposing a pre-filing restriction on Erde as a

vexatious litigant. We have jurisdiction under 28 U.S.C. § 158(d). We review de

novo the bankruptcy court’s conclusions of law and for clear error its findings of

fact. Decker v. Tramiel (In re JTS Corp.), 617 F.3d 1102, 1109 (9th Cir. 2010).

We affirm.

The bankruptcy court did not abuse its discretion by dismissing Erde’s

bankruptcy case because Erde failed to effectuate a confirmable plan of

reorganization. See 11 U.S.C. § 105(a) (setting forth bankruptcy court’s equitable

power to “issue any order, process, or judgment that is necessary or appropriate to

carry out the provisions of this title” including sua sponte action “necessary or

appropriate to enforce or implement court orders or rules, or to prevent an abuse of

process”), § 1112(b)(1), (b)(4) (cause for dismissal of case includes failure to file

or confirm a plan and inability to effectuate substantial consummation of a

confirmed plan); Snell v. Cleveland, Inc., 316 F.3d 822, 825 (9th Cir. 2002)

(standard of review for sua sponte dismissal).

The bankruptcy court did not abuse its discretion by declaring Erde a

vexatious litigant after providing notice and an opportunity to be heard, developing

an adequate record for review, making substantive findings as to the frivolous or

harassing nature of Erde’s litigation history, and narrowly tailoring its prohibition

2 19-60062 on future bankruptcy filings. See Ringgold–Lockhart v. County of Los Angeles,

761 F.3d 1057, 1061-67 (9th Cir. 2014) (setting forth standard of review and

procedural and substantive standards for a federal pre-filing order based on a

vexatious litigant determination).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Erde’s petition for initial determination en banc (Docket Entry Nos. 29, 30)

is denied as untimely. See Fed. R. App. P. 35(c).

All other pending motions and requests are denied.

AFFIRMED.

3 19-60062