Shmuel Erde v. John Brink

Ninth Circuit

Shmuel Erde v. John Brink

698 F. App'x 478

CourtCourt of Appeals for the Ninth Circuit

DecidedOctober 6, 2017

Docket16-55374

StatusUnpublished

This text of 698 F. App'x 478 (Shmuel Erde v. John Brink) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Shmuel Erde v. John Brink, 698 F. App'x 478 (9th Cir. 2017).

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Opinion

MEMORANDUM **

Shmuel Erde appeals pro se from the district court’s order affirming the bankruptcy court’s order denying Erde’s motion to reopen his Chapter 7 bankruptcy proceedings. To the extent Erde’s notice of appeal is timely, we have jurisdiction under 28 U.S.C. § 168(d). We affirm.

We lack jurisdiction to consider Erde’s challenges to the bankruptcy court’s order denying Erde’s motion to reopen because Erde’s notice of appeal was timely only as to the bankruptcy court’s order denying Erde’s motion for findings of fact and conclusions of law. See Fed. R. Bankr. P. 8002; Swimmer v. IRS, 811 F.2d 1343, 1344-45 (9th Cir. 1987) (under Fed. R. App. P. 4(a)(4), a second post-judgment motion does not toll time to appeal underlying judgment unless it was filed timely as to the underlying judgment); see also Arrowhead Estates Dev. Co. v. U.S. Trustee (In re Arrowhead Estates Dev. Co.), 42 F.3d 1306, 1310-11 (9th Cir. 1994) (stating that Fed. R. Bankr. P. 8002 should be interpreted consistently with Fed. R. App. P. 4(a)).

The notice of appeal was timely as to the bankruptcy court’s order denying Erde’s request for findings of fact and conclusions of law under Federal Rule of Bankruptcy Procedure 7052, but Erde does not address that order in his opening brief. As a result, he has waived any challenge to.the order. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[Ojn appeal, arguments not raised by a party in its opening brief are deemed waived.”); Greenwood v. FAA, 28 F,3d 971, 977 (9th Cir. 1994) (“We review only issues which are argued specifically and distinctly in a party’s opening brief.”).

Erde’s motions for leave to file supplemental briefing (Docket Entry Nos. 67 and 71) and request for ruling (Docket Entry No. 74) are denied.

Appellees’ request for judicial notice (Docket Entry No. 69) is denied as unnecessary.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM **

Shmuel Erde appeals pro se from the district court’s order affirming the bankruptcy court’s order denying Erde’s motion to reopen his Chapter 7 bankruptcy proceedings. To the extent Erde’s notice of appeal is timely, we have jurisdiction under 28 U.S.C. § 168(d). We affirm.

We lack jurisdiction to consider Erde’s challenges to the bankruptcy court’s order denying Erde’s motion to reopen because Erde’s notice of appeal was timely only as to the bankruptcy court’s order denying Erde’s motion for findings of fact and conclusions of law. See Fed. R. Bankr. P. 8002; Swimmer v. IRS, 811 F.2d 1343, 1344-45 (9th Cir. 1987) (under Fed. R. App. P. 4(a)(4), a second post-judgment motion does not toll time to appeal underlying judgment unless it was filed timely as to the underlying judgment); see also Arrowhead Estates Dev. Co. v. U.S. Trustee (In re Arrowhead Estates Dev. Co.), 42 F.3d 1306, 1310-11 (9th Cir. 1994) (stating that Fed. R. Bankr. P. 8002 should be interpreted consistently with Fed. R. App. P. 4(a)).

The notice of appeal was timely as to the bankruptcy court’s order denying Erde’s request for findings of fact and conclusions of law under Federal Rule of Bankruptcy Procedure 7052, but Erde does not address that order in his opening brief. As a result, he has waived any challenge to.the order. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[Ojn appeal, arguments not raised by a party in its opening brief are deemed waived.”); Greenwood v. FAA, 28 F,3d 971, 977 (9th Cir. 1994) (“We review only issues which are argued specifically and distinctly in a party’s opening brief.”).

Erde’s motions for leave to file supplemental briefing (Docket Entry Nos. 67 and 71) and request for ruling (Docket Entry No. 74) are denied.

Appellees’ request for judicial notice (Docket Entry No. 69) is denied as unnecessary.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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