In Re: Fruehauf Trailer Corporation, No. 2:2011cv09218 - Document 41 (C.D. Cal. 2013)
Court Description: ORDER AFFIRMING DECISION OF THE BANKRUPTCY COURT by Judge Dean D. Pregerson. (Made JS-6. Case Terminated.) (lc). Modified on 3/5/2013 (lc).
Download PDF
<![CDATA[
1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 IN RE FRUEHAUF TRAILER CORPORATION; CHRISS W. STREET, 13 Plaintiffs, 14 v. 15 16 17 DANIEL W. HARROW, AS SUCCESSOR TRUSTEE OF THE END OF THE ROAD TRUST, AND AMERICAN TRAILER INDUSTRIES, INC., 18 Defendants. 19 ___________________________ ) Case No. CV 11-09218 DDP ) ) ORDER AFFIRMING DECISION OF THE ) BANKRUPTCY COURT ) ) Bankruptcy Court case number: 2:96) ) bk-1563-RN ) Adversary number: 2:08-ap-1865-RN, ) ) BAP case number: cc-11-1585, ) ) ) ) ) ) ) 20 21 On November 7, 2011, Chriss W. Street appealed an order of the 22 bankruptcy court denying a Motion for Relief from Judgment and/or a 23 Continuance of Trial.1 24 Trustee of The End of the Road Trust, and American Trailer 25 Industries, Inc. (collectively Appellees ) urge the court to Appellees Daniel W. Harrow, as Successor 26 27 28 1 Notice of Appeal, Docket No. 2; Appellant s Opening Brief ( Appellant s Opening Brief ), Docket No. 21; see also Appellant s Reply Brief ( Appellant s Reply ), Docket No. 31. 1 affirm.2 2 Greer allegedly provided inadequate representation during the trial 3 and pretrial stages of this case. For the reasons discussed herein, 4 the court AFFIRMS the bankruptcy court s decision. The heart of Street s appeal is that his attorney Phillip 5 I. FACTUAL BACKGROUND 6 A. The Action 7 On October 7, 1996, Fruehauf Trailer Corporation and related 8 entities ( Fruehauf ) filed petitions for relief under Chapter 11 9 of the Bankruptcy Code.3 The plan of reorganization provided for 10 the creation of a trust to liquidate the debtors assets for the 11 benefit of Fruehauf s creditors.4 12 Street and Fruehauf entered into a trust agreement creating The End 13 of the Road Trust ( the Trust ).5 14 Trust from October 1998 to August 2005.6 15 ( Harrow ) replaced Street as trustee of the Trust on August 1, 16 2005.7 17 commenced an adversary action against Street in February 2007 in 18 the United States Bankruptcy Court for the District of Delaware.8 19 20 Pursuant to the plan, Chriss Street served as trustee of the Plaintiff Daniel Harrow In his capacity as successor trustee for the Trust, Harrow Street commenced an action in Delaware Chancery Court against Harrow seeking an order directing the Trust to advance costs and 21 2 Appellee s Opening Brief ( Appellee s Brief ), Docket No. 26. 23 3 Appellant s Excerpts of Record ( AER ), Docket No. 23, Tab 1 at 6. 24 4 Id. 25 5 Id., Tab 6 at 125. 26 6 Id. at 126. 27 7 Id. 28 8 22 Appellant s Supplemental Excerpts of Record ( SER ), Docket No. 28 (June 25, 2012), at 162. 2 1 attorneys fees he had incurred defending against claims related to 2 his role as former trustee.9 3 United States District Court for the District of Delaware, which 4 referred the action to the bankruptcy court. 5 represented during pretrial and trial phases of the adversary 6 action by attorney Phillip Greer.10 7 Harrow removed the action to the Street was On October 9, 2008, both the adversary action and Street s 8 lawsuit were transferred to the United States Bankruptcy Court for 9 the Central District of California. On October 14, 2008, Harrow 10 filed a second adversary proceeding against Street alleging that 11 Street had breached the Trust agreement and breached fiduciary 12 duties he owed the Trust as well.11 13 B. 14 The bankruptcy court held a pretrial conference in the Pretrial Proceedings 15 adversary proceeding on November 4, 2009. 16 to appear at the conference, although he had appeared at prior Street s attorney failed 17 18 19 20 21 22 23 24 25 26 27 28 9 Appellees Supplemental Excerpts of Record ( SER ), Tab 3 at 19-25, Docket No. 28. 10 AER, Tab 2 at 44-63 (Street s answer to second amended complaint, signed by Greer); SER, Tab 27 at 303. Statements Greer made at a pretrial conference suggest that he conducted discovery and took and/or defended depositions during the lawsuit. (SER, Tab 24 at 225-28.) Harrow suggests that Greer also represented Street in the action filed by Street, but the record is not clear on that point. As support for this proposition, Harrow cites a pretrial conference in the adversary action that took place on September 16, 2009, at which the parties discussed the status of Street s action. (Id. at 220-25.) Greer stated that Street was still working with Delaware counsel on matters related to the action, and that that s being handled back in Delaware. I m really not involved in that. (Id. at 220.) Greer s statements, however, suggest that, at a minimum, he was not the primary counsel of record. 11 AER, Tab 25 at 427. 3 1 pretrial conferences.12 2 dismissed Street s action for failure to prosecute, and directed 3 appellees counsel to give Street s attorney another opportunity to 4 address pretrial stipulations in the adversary action.13 5 Harrow submitted a pretrial order as directed. As a consequence, the bankruptcy court Greer did not 6 object, and on December 18, 2009, the court entered an order 7 approving the proposed pretrial conference order.14 8 listed 81 undisputed or stipulated facts, 31 disputed facts, and 9 issues of law regarding to appellees claims and Street s The order 10 counterclaim, identified witnesses, and included an exhibit list.15 11 Among these facts are figures comprising Harrow s damage claim.16 12 While Greer signed the proposed order,17 and the proposed order 13 indicates that it was jointly submitted, it contains minimal 14 information regarding the evidence Street intended to introduce at 15 trial, or any of Street s factual or legal contentions.18 16 17 18 19 20 21 22 23 24 25 26 27 28 12 SER, Tab 27 ( Nov. 4, 2009 Transcript ) at 239. 13 Id. at 249-58. 14 AER, Tab 3 at 64. 15 See generally, id. 16 Id. at 65-75. 17 Id. at 87. 18 Regarding the exhibits, the pleading stated that appellees intended to introduce certain exhibits and that they had given Street a copy of the exhibits. (Id. at 85.) In contrast, the document is silent concerning Street's intention to introduce exhibits. Likewise, the document states that appellees intended to call certain witnesses, and stated: "Defense counsel has failed to identify any witnesses, but it is believed by Plaintiffs that Defendant will call Chriss Street and Dennis W. Sinclair." (Id.) 4 1 The bankruptcy court held another pretrial conference on 2 January 6, 2010,19 at which the parties discussed their respective 3 preparations for trial. 4 Greer stated that the exhibits listed in the pretrial order were 5 pretty mutual, and derive[d] from the same activities. 20 6 suggested that he would seek to offer a final expert report 7 prepared by Dennis Sinclair, whom he intended to call as a 8 witness.21 9 facts in the pretrial order, and the court asked a number of When asked about Street s trial exhibits, He The parties also discussed the disputed and undisputed 10 questions regarding the precise issues to be tried.22 11 discussions at the pretrial conference, the parties submitted an 12 amended proposed pretrial conference order that once again stated 13 it was jointly submitted, and the pleading was signed by counsel 14 for both parties.23 15 stipulated facts and 31 disputed facts found in the prior order, 16 set forth issues of law to be resolved by the court, and identified 17 witnesses and exhibits. 18 few references to Street s exhibits, witnesses, or contentions. 19 Although the order stated that appellees were trial ready and 20 that they estimated it would take two days to present their case, The amended order contained the same 81 Like the previous pleading, it contained 21 22 23 24 25 26 27 28 Based on 19 AER, Tab 26 at 260. 20 Id. at 264. 21 Id. at 264, 272-73. 22 Id. at 274-85. 23 AER, Tab 4 at 91-116. 5 1 the pleading is silent regarding Street s readiness or trial time 2 estimates.24 3 The bankruptcy court signed and filed the amended pretrial 4 conference order and served it to the parties on January 14, 5 2010.25 6 confirming that he intended to call Street and Sinclair as 7 witnesses at trial.26 That same day, Greer filed an amendment to the order 8 C. 9 The bankruptcy court presided over a two-day trial on February The Trial 10 3-4, 2010. 11 number of stipulated exhibits and undisputed rebuttal exhibits.27 12 Street was present in the courtroom during a substantial portion of 13 the trial.28 14 Six witnesses testified, and the parties introduced a The bankruptcy court made several evidentiary rulings during 15 the trial, some of which excluded exhibits that had not been 16 produced in discovery.29 17 court prohibited Street from offering testimony that contradicted On several occasions, the bankruptcy 18 19 20 21 22 23 24 25 26 27 28 24 Id. at 113. 25 Id. The Amended Pretrial Order contained the following concluding paragraph: EFFECT OF PRETRIAL ORDER The foregoing admissions have been made by Plaintiffs and Defendant, and Plaintiffs and Defendant specified the foregoing issues of fact and law remaining to be litigated. Therefore, this order shall supersede the pleadings and govern the course of trial of this cause, unless modified to prevent manifest injustice. (Id. at 113.) 26 AER, Tab 5 at 117-20. 27 SER, Tabs 27-28. 28 SER, Tab 28 at 337. 29 SER, Tab 28 at 355-57. 6 1 stipulated facts in the amended pretrial order.30 2 dispute whether Street testified under oath that he did not dispute 3 the validity of any of the stipulated facts. 4 at the conclusion of the appellees case, appellees counsel Robert 5 Kugler, stated: 6 7 8 9 The parties On February 4, 2010, MR. KUGLER: I guess that brings us back to the question. That concludes our presentation on liability. I d reiterate again that our liability case is made up not only of testimony, but of the stipulated facts and the 163 exhibits that have been submitted to the Court, that have been stipulated to by Mr. Street. So we re done with liability. THE COURT: Okay. Thank you. 31 10 The following morning, on direct examination by Greer, Street 11 testified: 12 13 14 15 16 17 18 Q: Mr. Street, you were here yesterday for all the testimony of Mr. Harrow, Ms. Dolan, and Mr. Wynn, correct? A: Yes. Q: And you heard Mr. Kugler recite a number of stipulated facts, did you not? A: Yes. Q: And do you agree with those stipulated facts? A: Yes. Q: Are those the only facts that are pertinent in this matter? A: No. Q: Are there other facts that were not stipulated to? A: Yes. 32 19 20 21 22 23 24 25 26 27 28 30 See e.g., SER, Tab 28 at 338-40, 342-50. For example: [MR. GREER:] So would it be your opinion then that the stipulated fact of $2,074,000 is incorrect? STREET: Yes. MR. KUGLER: Your Honor THE COURT: Object. You stipulated that was a fact, Mr. Greer. So MR. GREER: I appreciate that, your Honor. THE COURT: Let s not challenge your own stipulation. MR. GREER: I can t unstipulate it. I understand your Honor. Thank you. (Id. at 345.) 31 Id. at 325. 32 Id. at 337. 7 1 Appellees contend in this testimony Street conceded the accuracy of 2 the stipulated facts set forth in the amended pretrial order. 3 Street argues that he agreed only to certain uncontroversial 4 stipulated facts cited by Harrow s counsel the previous day, such 5 as those concerning creation of the trust.33 6 Later that day, Greer attempted to qualify Dennis Sinclair as 7 a damages expert. 8 his opinions were based on certain documents Street had withheld 9 during discovery, and Greer withdrew Sinclair s testimony.34 Appellees objected after Sinclair testified that 10 Street, who was present in the courtroom, did not object to the 11 withdrawal. 12 The parties filed post-trial briefs on February 18, 2010.35 13 On March 5, 2010, the bankruptcy court issued a memorandum opinion 14 and entered judgment in favor of appellees, awarding them 15 approximately $7 million in damages.36 16 Harrow on Street s counterclaim for indemnification.37 17 D. The court also found for The Direct Appeal 18 19 20 21 22 23 24 25 26 27 28 33 Because a complete transcript of the prior day s proceedings is not included in the record, the court cannot determine which party has the better argument. (Appellant s Opening Brief at 6 n. 3.) 34 SER, Tab 28 at 366-71. The trial transcript does not clearly reflect why Greer withdrew Sinclair, but it appears that he did so after it became evident that Sinclair had relied on certain documents that should have been, but were not, made available to appellees. 35 AER, Tab 25 at 433. 36 AER, Tab 6 at 122. The bankruptcy court also held in Harrow s favor on Street s counterclaim for indemnification. (Id.) In calculating damages, it relied heavily on the stipulated facts. 37 Id. 8 1 After entry of judgment, Street obtained new counsel, James 2 Hayes.38 3 March 25, 2010,39 raising three issues: (1) the bankruptcy court 4 erred in applying Delaware trust law;(2) there was insufficient 5 evidence to show that Street breached his fiduciary duties and/or 6 violated the trust agreement, and (3) the bankruptcy court abused 7 its discretion in making certain evidentiary rulings during 8 trial.40 9 Hayes appealed the judgment to the district court on Hayes submitted an opening brief on June 18, 2010, and a 10 corrected brief on June 22, 2010.41 11 the first two issues identified for appeal; it did not address any 12 of The bankruptcy court s evidentiary rulings at trial.42 13 opening brief did, however, make the following statement regarding 14 Greer s performance as trial counsel: 15 16 17 18 19 20 21 22 25 26 27 28 The The undersigned counsel did not represent Appellant in any way before or during the trial on this proceeding. The Court will no doubt note, as it reads the trial transcripts, the thoroughly incompetent preparation and presentation of Appellant s defense made by his then counsel Phillip B. Greer. This included Mr. Greer s stipulation to 81 facts as undisputed at trial without Appellant s authorization. Appellant makes no excuse for his counsel s performance nor does he assert it as sole grounds for this appeal. Mr. Greer s incompetent performance notwithstanding the bankruptcy court made substantial errors of law and abuse of discretion in failing to enforce the exculpatory provisions of the trust agreement and the proper standards of review to the evidence presented by both parties. These errors warrant reversal of the judgment and either entry of 23 24 The opening brief argued only 38 See SER, Tab 2. 39 See AER, Tab 8. 40 See id. 41 See SER, Tab 4. 42 Id. at 34. 9 1 the judgment in Appellant s favor or remand to the bankruptcy court for retrial of both the liability and damages portions of the proceeding. 43 2 3 These paragraphs constitute the brief s sole reference to the 4 bankruptcy court s evidentiary rulings and Greer s performance as 5 trial counsel. 6 agreement of the parties, the Amended PTO set forth 81 stipulated 7 facts, and that [d]uring the two-day trial, Appellant firmly 8 defended his actions as trustee as being absolutely shielded by 9 provisions of the trust agreement. 44 10 The opening brief also asserted that [b]y This court affirmed the bankruptcy court s judgment on May 23, 11 2011. 12 (C.D. Cal. May 23, 2011). 13 correctly applied Delaware law and that there was substantial 14 evidence to support the judgment. 15 throughout his first appeal. In re Fruehauf Trailer, No. CV 10 02312 DDP, 2011 WL 2014672 It found that the bankruptcy court had Id. Hayes represented Street Id. 16 E. 17 While the appeal was pending, on March 4, 2011, Hayes served Street s Rule 60 Motions 18 and filed a substitution of attorney in the bankruptcy court, which 19 substituted Street pro se.45 20 Street filed two documents: a motion for relief from judgment under 21 Rule 60(b), and an application to file the motion under seal.46 22 The parties dispute the date these documents were actually filed; 23 the copies submitted to the court bear file-stamps of March 7, Three days later, on March 7, 2011, 24 25 43 Id. at 38-39. 26 44 Id. at 37, 49. 27 45 28 See SER, Tab 7. Hayes did not withdraw or file a similar substitution of counsel in the district court appeal. 46 See AER, Tabs 9-10. 10 1 2011, and electronic docket notations indicating that they were 2 entered on March 8, 2011.47 3 for relief from judgment on March 11, 2011.48 4 opposition and a motion to strike the March 7 application to file 5 under seal and the March 11 motion.49 6 scheduled a hearing for May 19, 2011.50 The bankruptcy court 7 considered Street s additional motions at the May 19 hearing. 8 9 Street also filed an amended motion Harrow filed an The bankruptcy court Street s March 11 Rule 60(b) motion sought to set aside the judgment on three grounds: (1) excusable neglect under Rule 10 60(b)(1); (2) newly discovered evidence under Rule 60(b)(2); and 11 (3) fraud on the court under Rule 60(b)(3).51 12 under Rule 60(b)(1) was based on Greer s allegedly inadequate 13 representation and focused primarily on Greer s agreement to 14 stipulate to the facts set forth in the amended pretrial conference 15 order, as this had played a role in the court s entry of judgment 16 against Street.52 17 cite that provision in his moving papers. 18 19 Street s argument Street did not invoke Rule 60(b)(6), and did not On June 9, 2011, The bankruptcy court entered a series of orders regarding the applications and motions pending before the 20 21 22 23 24 25 26 27 28 47 As discussed below, there is some confusion in the record as to when these pleadings were actually filed. 48 See AER, Tab 12. 49 See AER, Tabs 13-14; SER, Tab 9. 50 AER, Tab 13 at 249. 51 AER, Tab 12 at 219-24. 52 Id. 11 1 court.53 2 entertain the motions as they were filed while the case was pending 3 before this court on appeal. 4 addressed whether Street s March 11 Rule 60(b) motion and his April 5 20 Rule 60(b) motion had been timely filed: 6 He concluded, inter alia, that he lacked jurisdiction to Several of the orders nonetheless 13 The judgment in this case was entered on March 5, 2010. One year, would be March 5, 2011, which is a Saturday. Pursuant to Rule 9006(a)(1)(C), the deadline to file a Rule 60(b) motion would be on March 7, 2011 the following Monday. The original Rule 60 Motion was not filed on March 7, 2011, as required by Rule 60(c). The reality is that the first Rule 60 Motion filed by the Defendant was on March 11, 2011 and not on March 7, 2011. Thus, the motion was filed untimely. Even if a Rule 60(b) motion was filed within a year, it can still be untimely if it fails the reasonable-time requirement of the rule. Here, there is no showing that this motion was filed timely or within a reasonable time especially since Defendant chose to appeal the judgment before seeking a Rule 60 motion. The Court finds that the Defendant s Rule 60 motion is untimely. 54 14 F. 15 Before the bankruptcy court issued its June 9, 2011, orders, 7 8 9 10 11 12 The Order Being Appealed 16 on May 31, 2011, a document titled Motion for relief from judgment 17 and continuation of trial appeared on the bankruptcy court s 18 docket.55 19 Street filed for the first time on May 31, or whether it was in 20 actuality the missing March 7, 2011, motion that Street claimed 21 to have filed originally along with his March 7 application to The parties dispute whether this was a new motion that 22 23 24 25 26 27 28 53 E.g., AER, Tab 20 (Order Granting Plaintiff s Motion to Strike Defendant s Motion to file Documents Under Seal and Motion(s) for Relief from Judgment); AER Tab 21 (Order Denying Defendant s Motion for Leave to Amend Motion for Relief from Judgment); AER Tab 22 (Order Striking Defendant s April 20, 2011 Amended Motion for Relief from Judgment); SER, Tab 15 (Order Denying Defendant s Motion for Leave to Amend Motion to File Documents Under Seal); SER, Tabs 15-18 (additional June 9 orders striking defendant s motions); SER, Tabs 19-21 (orders entered on June 14 and 22 striking more of defendant s pleadings). 54 AER, Tab 20 at 397. 55 AER, Tab 25 at 442 (Docket Entry 149). 12 1 seal, which appeared late on the docket due to a docketing error. 2 The bankruptcy court s docket entry associated with the filing 3 contains a notation that the document was ORIGINALLY FILED 4 3/7/11, even though it was entered almost three months later.56 5 The document itself bears a file stamp of March 7, 2011.57 6 to Street s other motions, the May 31, 2011, filing raised 7 arguments under Rule 60(b)(1)-(3). Similar 8 On October 4, 2011, the bankruptcy court issued an Order 9 denying Street s May 31 Rule 60(b) Motion, which is the subject of 10 the instant appeal.58 11 observed that despite the March 7, 2011, file-stamp on the 12 document, the accompanying proof of service was not dated and also 13 misstated the mailing address for appellee s counsel.59 14 facts, the bankruptcy court stated, suggested that both service and 15 timeliness were in issue and that the court therefore could not 16 conclude that the May 31, 2011, docket entry should relate back 17 to the March 7, 2011, file stamp date.60 18 As to timely filing, the bankruptcy court These The bankruptcy court also held that even if Street s motion 19 related back to March 7, the motion would still fail for a number 20 of reasons. 21 remained pending on appeal, thereby divesting the bankruptcy First, as of March 7, the bankruptcy court s judgment 22 23 24 25 26 27 28 56 Id. 57 AER, Tab 19 at 357. 58 SER, Tab 23 ( Order Denying Defendant s Motion for Relief from Judgment and Or Continuation of Trial Under Rule 60 [hereinafter Bankruptcy Court Order]). 59 Id. at 209. 60 Id. 13 1 court s jurisdiction over the matter.61 2 Ins. Co. of N.Y., 790 F.2d 769, 772 (9th Cir. 1986). 3 bankruptcy court held that Street cannot overcome the effect of 4 the District Court s May 23 ruling affirming the Judgment, which 5 Street had not appealed.62 6 these circumstances rendered Street s Rule 60 motions moot.63 7 See Gould v. Mut. Life Second, the The bankruptcy court suggested that Finally, the bankruptcy court addressed the merits of Street s 8 Rule 60(b) arguments. 9 discovered evidence and purported fraud on the court largely 10 relied on the same factual contentions, and although it did not 11 explicitly state that it was doing so, he appears to have addressed 12 those arguments together. 13 Street had offered no explanation as to the timing of when these 14 newly discovered motions had surfaced, and had proffered no 15 suggestion that they could not have been raised within the time 16 requirements of Rule 60(b)(2).64 17 evidence Street had proffered, and stated that they did not negate 18 the facts . . . showing that Defendant, himself, breached his duty 19 to the trust, and that Street was not absolved of liability simply 20 because Plaintiff may have breached his own duties. 65 21 Street s argument of excusable neglect based on Greer s deficient 22 representation, the court concluded: Street s arguments regarding newly- The bankruptcy court observed that The court also examined the 23 24 25 26 27 28 61 Id. at 415. 62 Id. 63 Id. at 415-16. 64 Id. at 416. 65 Id. at 416-17. 14 As for 1 2 3 4 5 6 7 8 Defendant was present throughout the course of trial. If he did not agree with a stipulated fact, he could have challenged those facts at trial or asked his counsel to challenge them. He could have informed the court that he did not stipulate to those facts. Likewise, he could have fired his counsel at or before trial if he believed that he did not consent to the way his counsel conducted his defense. He failed to do so. In addition, the trial was extensive . . . and numerous items of evidence were presented . . . that established Defendant s liability. The Court considered all evidence presented at trial not only the stipulated facts. Indeed, Defendant failed to demonstrate that his failure to correct his counsel was excusable when he was an active participant and a witness at trial. He also had the opportunity to negate the evidence presented in court. 66 9 As Street s motion did not explicitly address relief under Rule 10 60(b)(6), the court did not address that provision. Finding that 11 Street had failed to raise any meritorious basis for relief under 12 Rule 60(b), the bankruptcy court denied his motion. 13 Street engaged a third lawyer, Christopher Pitet, shortly 14 before the hearing on his May 31 Rule 60(b) motion, who is 15 representing him through this appeal. 16 II. DISCUSSION 17 A. Standard of Review 18 District Courts have jurisdiction to hear appeals from final 19 judgments, orders or decrees of the bankruptcy court. 28 U.S.C. ยง 20 158(a). When reviewing a bankruptcy court s decision . . . a 21 district court functions as a[n] appellate court and applies the 22 standard of review generally applied in the federal court[s] [of] 23 appeal[]. In re Webb v. Reserve Life Ins. Co., 954 F.2d 1102, 24 1103-04 (5th Cir. 1992). The district court must accept the 25 bankruptcy court s findings of fact unless they are clearly 26 erroneous. See In re Banks, 263 F.3d 862, 867 (9th Cir. 2001). A 27 28 66 AER, Tab 23 at 417. 15 1 finding is clearly erroneous when although there is evidence to 2 support it, the reviewing court on the entire evidence is left with 3 the definite and firm conviction that a mistake has been 4 committed. Id. at 869 (9th Cir. 2001) (quoting Anderson v. 5 Bessemer City, 470 U.S. 564, 573 (1985)). 6 reviews the bankruptcy court s conclusions of law de novo. 7 Sony Music Entm t, Inc., 448 F.3d 1134, 1137 (9th Cir. 2006). 8 9 The district court Laws v. The bankruptcy court s order on a Rule 60(b) motion is reviewed for abuse of discretion. See Latshaw v. Trainer Wortham & 10 Co., 452 F.3d 1097, 1100 (9th Cir. 2006). 11 only if the bankruptcy court did not apply the correct law, 12 rest[ed] its decision on a clearly erroneous finding of a material 13 fact, or applie[d] the correct legal standard in a manner that 14 result[ed] in an abuse of discretion. 15 R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992). 16 Reversal is warranted Engleson v. Burlington N. When sitting as an appellate court in bankruptcy, the district 17 court need not adopt the bankruptcy court s rationale for its 18 decision. 19 any basis fairly supported by the record. 20 Props., Inc., 979 F.2d 1358, 1364 (9th Cir. 1992) ( [W]e may affirm 21 on any basis supported by the record . . . ); In re Hopkins .v 22 United States, 201 B.R. 993 (D. Nev. 1996). Rather, like other appellate courts, it may affirm on See In re Frontier 23 B. 24 The gravamen of Street s contention on appeal is whether he is 25 entitled to relief under Rule 60(b)(6) as a result of Greer s gross 26 negligence. 27 relieve party or legal representative from final judgment for any 28 other reason that justifies relief ). Whether the Bankruptcy Court s Order Should Be Reversed See Fed. R. Civ. P. 60(b)(6) (stating that court may 16 In response, appellees raise 1 three primary arguments. 2 appeal is at its core . . . a challenge to [the bankruptcy 3 court s] evidentiary rulings that precluded testimony contrary to 4 stipulated facts, and that Street raised and subsequently 5 abandoned this challenge in his appeal of the underlying 6 judgment.67 7 longer raise this claim.68 8 did not appeal from the denial of his March 11 and April 20 9 amended motions, those rulings are final and unappealable and 10 that moreover, the bankruptcy court was correct in ruling that 11 Street s Rule 60(b) motions were untimely filed, thereby 12 procedurally barring the instant appeal.69 13 that the bankruptcy court did not abuse its discretion in denying 14 Street s motions on their merits, and that even if the bankruptcy 15 court were to consider Street s motion under Rule 60(b)(6), the 16 record supports a conclusion that Street has failed to demonstrate 17 that he is entitled to relief.70 18 contention in turn. 19 1. 20 21 First, they contend that Street s current As a consequence, appellees assert, Street can no Second, appellees argue that as Street Third, they contend The court addresses each Whether Street Has Abandoned Issues Related to the Stipulated Facts and Incompetence of Trial Counsel Appellees characterize Street s argument regarding Greer s 22 incompetence as trial counsel as a thinly-veiled attempt to 23 overturn The bankruptcy court s evidentiary rulings. 24 25 26 27 28 67 Appellees Opening Brief at 16-18. 68 Id. 69 Id. at 18-21. 70 Id. at 21-28. 17 This, they 1 contend, is an impermissible means of avoid[ing] the consequences 2 of his prior appeal to the District Court, where he raised the 3 evidentiary rulings in his statement of issues on appeal, but did 4 not argue them in his briefs.71 5 As an initial matter, the court agrees that by raising the 6 propriety of the bankruptcy court s evidentiary rulings, but 7 failing to argue the issue in his appeal brief before this court, 8 Street raised and subsequently abandoned any challenge to those 9 rulings. Kohler v. Inter-Tel. Tech., 244 F.3d 1167, 1182 (9th Cir. 10 2001) ( Issues raised in a brief which are not supported by 11 argument are deemed abandoned. (citations omitted)). 12 This conclusion does not compel a finding that Street has 13 similarly abandoned any arguments as to Greer s incompetence as 14 counsel. 15 facts and parts of the record, they are nonetheless quite distinct 16 and rely on different legal theories and factual contentions. 17 importantly, any challenge to the bankruptcy court s evidentiary 18 rulings goes directly to the merits of the bankruptcy court s 19 judgment, while arguments regarding Greer s competence address 20 whether Street is entitled to some form of relief from the entry of 21 judgment notwithstanding its merits. 22 brief s mention of Greer s incompetence, Street procedurally could 23 not have raised any arguments to this court regarding trial 24 counsel s deficiencies, as at the time of appeal those issues had 25 not been raised before the bankruptcy court. 26 Robertson, 52 F.3d 789, 791 (9th Cir. 1994) ( Issues not presented Although the two issues rely to some extent on the same 27 28 71 Id. at 17. 18 Most Indeed, despite the appeal See United States v. 1 to the district court cannot generally be raised for the first time 2 on appeal. ). 3 even have properly presented that issue on appeal, much less raised 4 it only to abandon it. 5 Accordingly, it is highly doubtful that Street could Although appellees offer various authorities that allegedly 6 support their contentions, all of the cases cited are inapposite. 7 Some of its cited authority addresses the separate issues of the 8 timeliness of a Rule 60(b)(6) motion, See Hoult v. Hoult, 57 F.3d 9 1, 3 (1st Cir. 1995), or the legal standard governing the merits of 10 such a motion, See Hopper v. Euclid Manor Nursing Home, Inc., 867 11 F.2d 291, 294 (6th Cir. 1989). 12 Additionally, while appellees argument on this point is 13 unclear, they draw on cases addressing the rule of mandate in 14 support of this argument, contending that this court s affirmance 15 of the bankruptcy court s judgment somehow precludes plaintiff from 16 raising any argument as to Greer s incompetence. 17 v. Kellington, 217 F.3d 1084, 1093 (9th Cir.2000) ( According to 18 the rule of mandate, although lower courts are obliged to execute 19 the terms of a mandate, they are free as to anything not 20 foreclosed by the mandate . . . ). 21 bankruptcy court implicitly recognized this principle when it 22 held that this court s mandate rendered Street s pending Rule 60(b) 23 motion moot. 24 appellees believe that the rule of mandate precluded the bankruptcy 25 court from hearing this argument after affirmance, they are 26 incorrect. 27 proceeding inconsistent with the appellate court s decision, not 28 more. See United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995). See United States Appellees suggest that the However, to the extent that the bankruptcy court or The rule of mandate prohibits entertain[ing] a 19 1 As noted, the question of Greer s competence as counsel was not 2 raised as a ground for reversal and this court neither expressly 3 nor impliedly resolved the issue on appeal. 4 mandate did not foreclose the bankruptcy court from considering the 5 issue. 6 precluded from arguing this issue under a waiver or abandonment 7 theory. For those reasons, the court cannot conclude that Street is 8 9 Consequently, the 2. Whether Street s Rule 60 Motion was Timely Appellees claim that Street s Rule 60 Motion was time barred. 10 Federal Rule of Civil Procedure 60 governed Street s Rule 60 11 Motion. 12 Procedure 60(c) requires such motions to be made within a 13 reasonable time and for reasons (1), (2), and (3) no more than a 14 year after the entry of the judgment or order of the date of the 15 proceeding. 16 an unreasonable amount of time has passed, the appellate court 17 reviews the decision on an abuse of discretion standard. 18 States v. Holtzman, 762 F.2d 720, 725 (9th Cir. 1985). 19 See Fed. R. Bank. P. 9024. Fed. R. Civ. P. Federal Rule of Civil When a judge bars a motion because United The bankruptcy court denied Street s Rule 60 Motion for two 20 reasons: first, it was beyond the time limit that Federal Rule of 21 Civil Procedure 60(c) sets, and, second, it was not filed in a 22 reasonable time, as Rule 60(c) requires.72 23 argument on the first reason. 24 second, cursorily arguing that since his first appeal to this court 25 took longer than a year, it would be unfair to say that he did not He only briefly addresses the 26 27 28 72 Street focuses his AER, Tab 20 at 397. 20 1 file within a reasonable time.73 2 faulted Street for pursuing that appeal before filing his Rule 60 3 motion in bankruptcy court.74 4 concern, and therefore fails to carry his burden on appeal. 5 3. 6 7 However, the bankruptcy court Street does not address this Whether the Bankruptcy Court s Ruling Was Correct on Its Merits Judgments are not often set aside under Rule 60(b)(6). 8 Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 9 2006). Instead, the rule is used sparingly as an equitable remedy 10 to prevent manifest injustice, and is to be utilized only where 11 extraordinary circumstances prevented a party from taking timely 12 action to prevent or correct an erroneous judgment. 13 v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th 14 Cir.1993)). 15 United States Rule 60(b)(6) applies only when the reason for granting relief 16 is not covered by any of the rationales outlined in Rule 60(b)(1)- 17 (5), Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168 n. 8 (9th 18 Cir. 2002), and is to be utilized only where extraordinary 19 circumstances prevented a party from taking timely action to 20 prevent or correct an erroneous judgment. Alpine Land & Reservoir 21 Co., 984 F.2d at 1049. 22 relief must demonstrate both injury and circumstances beyond his 23 control that prevented him from proceeding with ... the action in a 24 proper fashion. Tani, 282 F.3d at 1168. Accordingly, a party who moves for such 25 26 27 28 73 Appellant s Reply at 5 n.1. 74 AER, Tab 20 at 397. 21 1 a. Whether Street s Failure to Cite Rule 60(b)(6) 2 Precludes Consideration of the Issue on Appeal 3 Before turning to the merits of the parties contentions, the 4 court must address a threshold issue. 5 Rule 60(b) motions before the bankruptcy court explicitly cited 6 Rule 60(b)(6) or offered any argument suggesting that he was trying 7 to bring a motion under that provision. 8 was the case, but argues that the bankruptcy court nonetheless 9 erred in failing to consider his motion under that provision, as None of Street s numerous Street concedes that this 10 the facts raised in Street s briefs clearly suggested an attempt to 11 assert that extraordinary circumstances justified relief. 12 As support for this proposition, Street cites to a line of 13 unpublished Ninth Circuit and district court cases that have opined 14 about a court s discretion to consider a motion as brought under 15 Rule 60(b)(6), even when the movant fails to cite to or argue the 16 motion under that rule. 17 262 Fed. App x 828, 829 30 (9th Cir. 2008), the court reversed the 18 district court s denial of a Rule 60(b) motion where the movants 19 sought relief from the trial court s entry of summary judgment 20 after their attorney failed to oppose defendant s motion. 21 at 829. 22 negligence, the Ninth Circuit concluded, it was error for the 23 court to deny relief under Rule 60(b)(6). 24 Spates Moore v. Henderson, 305 Fed. App x 449 (9th Cir. 2008), the 25 court suggested that the district court had erred in failing to 26 analyze a motion for relief from judgment under Rule 60(b)(6), even 27 when the movant had explicitly brought her motion under three other 28 subsections of Rule 60(b) without mentioning the extraordinary For example, in Moore v. United States, See id. Because the attorney s actions amounted to gross 22 Id. Similarly, in 1 circumstances provision. Id. at 450. 2 a circumstance where the movant s counsel had failed to oppose a 3 motion for summary judgment. 4 that much of this information [addressing counsel s negligence] 5 was never available to the trial judge, but that the trial court 6 should have an opportunity to consider whether relief is warranted 7 under this subsection and remanded the matter for further 8 consideration. 9 404 F.2d 632, 633 (9th Cir. 1968), a case neither party cites nor Id. at 451. Id. Spates-Moore also addressed The Ninth Circuit recognized Additionally, in McKinney v. Boyle, 10 discusses, the Ninth Circuit held that the district court had erred 11 in denying as untimely a Rule 60(b) motion made on the ground of 12 fraud and deceit, thus seemingly bringing it within the purview 13 of Rule 60(b)(3). 14 counsel had deceived him and entered into a stipulation to dismiss 15 the case without his consent. 16 apparently not cited to a specific subsection of the rule, but 17 since the motion addressed fraud committed on the movant by his own 18 counsel, it brought him within ground (6), as to which there is no 19 fixed time limit. 20 district court to receive further evidence relating to the 21 plaintiff s motion to set aside the order of dismissal, and to 22 decide the motion, as well as address whether the motion was 23 brought under a reasonable time. 24 In that case, the movant contended that his own Id. at 633. Id. at 634. The movant had The Ninth Circuit remanded for the Id. Following this seeming trend in the Ninth Circuit, at least 25 one other California district court has considered whether any 26 other reason []justifies relief under Rule 60(b)(6), even if the 27 movant never cited to or raised arguments under that subsection. 28 See Slama v. City of Madera, No. 1:08 cv 00810 AWI SKO, 2011 WL 23 1 3667334 (E.D. Cal. 2011) ( Although Plaintiff does not specifically 2 argue for relief pursuant to Rule 60(b)(6), unpublished Ninth 3 Circuit cases indicate that district courts should determine 4 whether circumstances warrant consideration under Rule 60(b)(6) . . 5 . . 6 reason that justifies relief pursuant to Rule 60(b)(6). (internal 7 citations omitted)). 8 9 As such, the Court considers whether there is any other This court appreciates the need to discern trends in Ninth Circuit authority even when the circuit has not issued published 10 guidance directly on point.75 11 that the bankruptcy court erred as a matter of law in failing sua 12 sponte to raise an issue that Street never attempted to raise 13 before the district court. 14 explicitly brought under Rules 60(b)(1)-(3) and its argument on the 15 issue of Greer s negligence comprised a little over a page of his 16 briefs,76 which focused heavily on plaintiff s alleged fraud on the 17 court. 18 of the intricacies of the Federal Rules, the fact that he 19 specifically cited three separate subsections of Rule 60 in his 20 motions suggests some level of understanding of the Rule s 21 operation. 22 construct an argument on defendant s behalf. Nonetheless, the court does not find As noted, Street s arguments were Although Street was a pro se plaintiff who lacked awareness This court will not require the bankruptcy court to 23 24 25 26 27 28 75 This issue has been raised to the Ninth Circuit at least once before in a published opinion, but there the court decided that it need not reach the issue and rested its opinion on other grounds. See Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (9th Cir. 1989) ( As an initial matter, defendant challenges the District Court s authority to utilize Rule 60(b)(6) on its own motion. We need not decide this issue since we conclude that the facts of this case do not present an exceptional situation justifying the application of Rule 60(b)(6). ). 76 AER, Tab 12 at 16-17; Tab 19 at 16-17. 24 1 Moreover, it is far from a settled proposition that a court is 2 obligated, as a matter of law, to consider Rule 60(b)(6) despite a 3 movant s failure to identify or offer argument under that 4 provision. 5 dissent from Judge Bea, who pointed out that plaintiffs never 6 argued in the district court they were entitled to relief under 7 subsection (b)(6); indeed, they do not do so here . . . . 8 people who so argue are the majority, and as an original 9 proposition on appeal. Moore, for example, was decided over a strongly worded 262 Fed. App x at 829. The only In yet another 10 unpublished decision, the Ninth Circuit concluded that the district 11 court had acted within its discretion in denying a motion for 12 relief under Rule 60(b)(1) from a default judgment and did not 13 reach the issue of whether Rule 60(b)(6) applied. 14 434 Fed. Appx. 588 (9th Cir. 2011). 15 that subsection over a dissent from Judge Goodwin, who contended 16 that this circuit has long recast a party s own characterization 17 of subject matter from one subsection to another. 18 (citing McKinney, 404 F. 2d at 634). 19 this decision as a choice within [a] court s discretion, and did 20 not necessarily contend that the lower court had erred as a matter 21 of law. 22 Ninth Circuit law on the area toward applying Rule 60(b)(6) even in 23 the absence of citation or argument under the rule, the law is 24 simply unsettled on this point, and no precedential, binding 25 authority requires its application in these circumstances. Id. Icho v. Hammer, The panel declined to apply Id. at 592 n. 1 Judge Goodwin characterized These cases strongly suggest that far from a trend in 26 The court finds that the bankruptcy court did not err by 27 failing to construe Street s motion as brought under Rule 60(b)(6). 28 25 1 b. Whether Relief Under Rule 60(b)(6) is Warranted 2 Even were the court to conclude that the bankruptcy court 3 should have addressed Street s motion under Rule 60(b)(6), the 4 record discloses more than sufficient basis to find that the 5 bankruptcy court did not abuse his discretion in denying Street s 6 motion on its merits. 7 line of Ninth Circuit authority that is of questionable 8 applicability to the present case. 9 Comty. Dental Servs. v. Tani, where the Ninth Circuit joined a As an initial matter, Street relies on a Specifically, Street cites 10 number of other circuits in in holding that where the client has 11 demonstrated gross negligence on the part of his counsel, a default 12 judgment against the client may be set aside pursuant to Rule 13 60(b)(6). 14 Tani court observed that judgment by default is an extreme 15 measure cutting against the strong preference for resolving a case 16 on its merits, and that the judicial system loses credibility as 17 well as the appearance of fairness, if the result is that an 18 innocent party is forced to suffer drastic consequences. 19 1170. 20 negligence-which is not chargeable to the client-and ordinary 21 negligence or neglect-which is. 22 circumstances, the Ninth Circuit held that a party should not be 23 held responsible for his or her counsel s failures, especially if 24 that failure leads to the entry of judgment without the opportunity 25 to properly defend his or her claims. 26 282 F.3d at 1169. In reaching this conclusion, the Id. at Tani also drew a crucial distinction between gross Id. In the former set of The Ninth Circuit extended Tani s reasoning outside the 27 default judgment context in Lal v. California, 610 F.3d 518, 520-21 28 (2010), ruling that counsel s gross negligence warranted relief 26 1 from a district court s order dismissing a case after the attorney 2 failed to meet deadlines and attend hearings. 3 The fact situation confronting the Lal court was the converse of a 4 default judgment, and the only significant difference is that the 5 plaintiff rather than the defendant suffers the adverse judgment. 6 Id. at 524-25. 7 Rule 41(b) is much more like a default judgment . . . . The same 8 policy considerations underlie dismissal for failure to prosecute. 9 Id. at 525. Id. at 520-21. As [a] dismissal for failure to prosecute under In either circumstance, the Ninth Circuit held, it 10 would be unfair to impute counsel s failures to a litigant, as 11 [i]n both instances, the consequence of the attorney s action (or 12 inaction) is a loss of the case on the merits. 13 Id. at 524. In relying on Tani and Lal, Street elides a critical 14 distinction. 15 judgment entered against him simply because he had failed to 16 respond to a court order or comply with court rules. 17 judgment was only entered after Street had the opportunity to 18 litigate his claims in a full trial on the merits, where his 19 attorney made objections, presented evidence, and made arguments in 20 an effort to defend against Harrow s claims. 21 that Greer failed to attend a pretrial conference, agreed to 22 numerous stipulated facts that supported the bankruptcy court s 23 finding of liability, and attempted to call, then withdrew, a 24 damages expert who may have mitigated some of the judgment amount. 25 He characterizes Greer s failures as akin to counsel s failures in 26 Tani and Lal, and suggests that Greer essentially abandoned Street 27 to the mercies of Harrow s counsel and the court. 28 dispute, however, that unlike the litigants in those cases, he had Here, Street did not default on his claims, nor was 27 Instead, Street points out Street cannot 1 ample opportunity for a hearing on the merits of his case, and that 2 Greer s failure to appear at a single pretrial conference 3 notwithstanding, he was duly represented at other pretrial 4 conferences and hearings, as well as at trial itself. 5 problems with Greer s representation, he cannot claim that 6 counsel s abandonment inevitably led to judgment without 7 consideration of the merits of his defenses. 8 9 Whatever his Additionally, Street fails to recognize the import of the Ninth Circuit s opinion in Latshaw, 452 F.3d at 1097, which 10 declined to apply the Tani-Lal rule to relief from judgment under 11 Rule 68. 12 by contrast to disfavored default judgments, the court held that 13 counsel s alleged gross negligence does not provide grounds to 14 vacate the judgment under Rule 60(b)(6). 15 the strong policy interest in the finality of judgments, the Ninth 16 Circuit explicitly declined to apply Rule 60(b)(6) so liberally 17 outside a context where judgment had been entered by sole reason of 18 counsel s lapses. 19 voluntarily signed the Rule 68 acceptance. 20 decision may have been driven by inept or erroneous advice or 21 conduct of her counsel, neither the alleged negligence at issue nor 22 the purported fraud on the court fall among those exceptional 23 circumstances meriting Rule 60(b)(6) relief. ). 24 Ninth Circuit has expressly distinguished some types of judgments 25 from the default judgments and dismissal orders at issue in Tani 26 and Lal, Street fails to offer a convincing reason that the gross 27 negligence rule applied in those cases necessarily governs the 28 court s review here. As Rule 68 judgments are actively supported by courts, Id. at 1103-04. Given See id. at 1104 ( Latshaw knowingly and Though Latshaw s Given that the See also Sanchez v. Stryker Corp., No. 28 1 2:10 cv 08832 ODW 2012 WL 1570569, at *4 (C.D. Cal. May 2, 2012) 2 (holding that Tani did not apply to Rule 60(b)(6) motion for relief 3 from order on motion in limine, since movant [did] not seek relief 4 from a default judgment ). 5 Even applying the liberal standard laid forth in Tani and Lal, 6 Street s appeal still fails. 7 evidence to uphold the bankruptcy court s exercise of discretion. 8 Courts in analogous circumstances have drawn clear distinctions 9 between an attorney s total abandonment of his client s interests, 10 and an attorney s lax or deficient performance and concluded that 11 the latter does not warrant relieving a party from judgment. 12 example, in Markray v. AT & T SBC Pacific Bell Directory, No. CV 13 07 08001 DDP (CTx), 2010 WL 3220096, *3 (C.D. Cal. Aug. 13, 2010), 14 the court denied relief from summary judgment as [p]laintiff s 15 attorney was not grossly negligent. 16 a substantively weak opposition to a summary judgment motion, the 17 court could not conclude that he had deliberately misled his client 18 about the case, and had informed her client of the judgment and the 19 need to file a Rule 60(b) motion. 20 court held that the plaintiff s attorney did not virtually 21 abandon her client and denied relief under Rule 60(b)(6). 22 Similarly, in Brown v. Cowlitz County, No. C09 5090 RBL, 2010 WL 23 1608876, *1 *2 (W.D.Wash. Apr.19, 2010), the district court denied 24 relief from summary judgment under Rule 60(b)(6), finding that 25 counsel cannot be considered to have abandoned his client. 26 at *2. 27 summary judgment, although he had failed to oppose the other. 28 Counsel had also subsequently filed a motion for reconsideration. The record discloses sufficient For While the attorney had filed Id. Under those facts, the Id. Id. Counsel filed pleadings opposing one of the motions for 29 1 Id. 2 attorney abandonment or gross negligence under Rule 60(b)(6). 3 Additionally, in 4 WL 1946966, *2 (D. Nev. 2012), the court declined to grant relief 5 on the basis of a theoretically faulty opposition to the motion 6 for summary judgment, since counsel did oppose the motion, just 7 in a way [the plaintiff] disagrees with and that may have been 8 negligent. 9 As such, the plaintiff was not entitled to relief due to Id. Sylver v. Mathis, No. 2:09 cv 00855 RLH LRL, 2012 Id. The court cannot conclude on this record that the bankruptcy 10 court abused its discretion in denying relief. 11 court observed, his order entering judgment relied on numerous 12 items of evidence aside from the stipulated facts, and that Street 13 had the opportunity to negate the evidence presented in court. 77 14 While Greer failed to appear at the parties initial pretrial 15 conference, the bankruptcy court gave defense counsel the 16 opportunity to correct that error, and Greer later appeared at a 17 second pretrial conference before the court, where the parties 18 discussed the conference order and Greer suggested that the 19 defendant would be relying on the same stipulated facts as the 20 plaintiff. 21 he offered argument, presented testimony, and asserted objections 22 to the plaintiff s evidence. 23 with how the case was handled and the efficacy of Greer s 24 representation, the court discerns no basis for concluding that his 25 performance was so ineffective or absent that it amounts to the 26 entry of default judgment against defendant. Greer was also unquestionably present at trial, where Although Street may now have concerns 27 28 77 As the bankruptcy Bankr. Ct. Order at 5. 30 1 Street s moving papers suggest in conclusory fashion that 2 Greer acted without [his] authority or in [his] interest, a 3 contention that may support a conclusion that his performance was 4 grossly deficient. 5 point, however, and neither the bankruptcy court nor this court in 6 review has any reason to believe that Greer failed to communicate 7 with Street regarding his representation, or that the stipulations 8 entered into via the pretrial conference orders were made without 9 his knowledge and consent. The record discloses minimal evidence on this On appeal, Street has not pointed to 10 any evidence indicating otherwise; indeed, the only testimony in 11 the record about the defendant s position on the stipulated facts 12 is testimony on the second day of trial suggesting that Street 13 agreed with at least some of the stipulated facts laid forth in the 14 amended pretrial conference order. 15 trial transcript discloses an instance where Street was prevented 16 from testifying about his belief that one of the stipulated facts 17 was not correct,78 he has adduced no evidence before the bankruptcy 18 court of his purported disagreement with the remaining 80 19 stipulated facts, nor does he identify any such evidence now. 20 Madison v. First Mangus Financial Corp., No. CV 08 1562 PHX GMS, 21 2009 WL 1148453, at *2 *4 (D. Ariz. Apr.28, 2009) ( Despite 22 receiving notice of dismissal and knowledge of the deadline for 23 repleading the matter, Mr. Jung failed to properly inform his 24 client of the developments, failed to notify her when the deadline 25 was imminent, failed to file a second amended complaint despite 26 assurances the he would do so, and even avoided corresponding with 27 28 78 SER, Tab 28 at 345. 31 Additionally, although the Cf. 1 Plaintiff after the deadline was missed. Nor did Mr. Jung file a 2 motion for relief on behalf of his client. His deficient 3 representation resulted in the ultimate sanction against 4 Plaintiff the loss of her ability to present the merits of her 5 case. . . . ). 6 While Street may have claims that Greer s representation was 7 negligent and harmful to his interests, the present record 8 discloses no reason to conclude that the bankruptcy court abused 9 its discretion by denying Street s motion. See Allmerica Fin. Life 10 Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir.1997) 11 (holding that [c]ontrary to Llewellyn s contention, counsel s 12 failure to plead an affirmative defense of waiver in the First 13 Amended Answer does not provide a basis for equitable relief under 14 Rule 60(b)(1) or 60(b)(6)). 15 F.3d 1254, 1260 (9th Cir.2004) ( As a general rule, parties are 16 bound by the actions of their lawyers and alleged attorney 17 malpractice does not usually provide a basis to set aside a 18 judgment pursuant to Rule 60(b)(1). ). Cf. Casey v. Albertson s Inc., 362 19 20 21 22 IV. CONCLUSION For the reasons stated, the decision of the bankruptcy court is AFFIRMED. 23 24 IT IS SO ORDERED. 25 26 27 Dated: March 5, 2013 DEAN D. PREGERSON United States District Judge 28 32
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
