Unpublished Disposition, 872 F.2d 426 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 872 F.2d 426 (9th Cir. 1987)

Eli AVI, Plaintiff-Appellant,v.SEARS SAVINGS BANK, formerly known as Allstate Savings andLoan Association, Defendant-Appellee.

No. 86-6773.

United States Court of Appeals, Ninth Circuit.

Submitted*  Jan. 31, 1989.Decided March 22, 1989.

Before BARNES, WALLACE and SKOPIL, Circuit Judges.


Eli Avi appeals pro se the district court's order dismissing his complaint for lack of subject matter jurisdiction and imposing sanctions. Avi contends that the district court had jurisdiction pursuant to 28 U.S.C. § 1471(b) (1982) and 11 U.S.C. §§ 301 and 362 (1982) and therefore should not have imposed sanctions. We affirm and impose sanctions pursuant to Fed. R. App. P. 38 on the ground that Avi's appeal is frivolous.


Avi contends that 11 U.S.C. §§ 301 and 362 provide a basis for jurisdiction. Section 301 allows a debtor to commence a voluntary case in bankruptcy court. Section 362 provides for an automatic stay following the commencement of a case in bankruptcy court pursuant to section 301. Avi's complaint, however, is not a petition for bankruptcy filed in the bankruptcy court. Accordingly, the district court did not err in concluding that neither section 301 nor 362 provides jurisdiction.

A district court may have jurisdiction over civil proceedings relating to bankruptcy cases. 28 U.S.C. § 1471(b). There is no jurisdiction, however, when the civil proceeding involves property which was part of the bankruptcy estate but has been sold to a good faith purchaser. In re Suchy, 786 F.2d 900, 901-02 (9th Cir. 1985). Because the property that is the subject of Avi's complaint has already been sold to a good faith purchaser, the district court properly held that it lacked subject matter jurisdiction over Avi's complaint.

Fed. R. Civ. P. 11 provides for sanctions when a pleading is frivolous, legally unreasonable, or without factual foundation. Zaldivar v. Los Angeles, 780 F.2d 823, 831 (9th Cir. 1986). Sanctions may be imposed even if the court lacked subject matter jurisdiction over the action. Orange Production Credit Ass'n v. Frontline Ventures Ltd., 792 F.2d 797, 800 (9th Cir. 1986).

Here, Avi should have known that the district court lacked jurisdiction because his almost identical complaint filed in 1985 was also dismissed by the district court for lack of subject matter jurisdiction. Avi v. American Savings, No.Civ.Act. 85-5700 AWT (C.D. Cal. Jan. 21, 1986). Accordingly, we conclude that the district court did not err in imposing Rule 11 sanctions.

Sears also requests sanctions on appeal. Fed. R. App. P. 38 provides for single or double costs or attorney's fees as a sanction for frivolous appeals. An appeal is frivolous "when the result of the appeal is obvious and the arguments of error are wholly without merit." Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 212 (9th Cir. 1987) (internal quotations omitted).

When Avi appealed the dismissal of a similar complaint brought against a different set of defendants, we imposed sanctions for bringing a frivolous appeal. See Avi v. American Savings, No. 86-5671 (9th Cir. Feb. 2, 1987). Avi therefore had notice that this appeal is meritless and his arguments are frivolous. We impose double costs as a sanction for Avi's frivolous appeal.



The panel unanimously finds this case suitable for submission without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3