In Re: Fruehauf Trailer Corporation
Filing
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ORDER AFFIRMING DECISION OF THE BANKRUPTCY COURT by Judge Dean D. Pregerson. (Made JS-6. Case Terminated.) (lc). Modified on 3/5/2013 (lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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IN RE
FRUEHAUF TRAILER
CORPORATION; CHRISS W.
STREET,
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Plaintiffs,
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v.
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DANIEL W. HARROW, AS
SUCCESSOR TRUSTEE OF THE END
OF THE ROAD TRUST, AND
AMERICAN TRAILER INDUSTRIES,
INC.,
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Defendants.
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___________________________
) Case No. CV 11-09218 DDP
)
) ORDER AFFIRMING DECISION OF THE
) BANKRUPTCY COURT
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) Bankruptcy Court case number: 2:96)
) bk-1563-RN
) Adversary number: 2:08-ap-1865-RN,
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) BAP case number: cc-11-1585,
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On November 7, 2011, Chriss W. Street appealed an order of the
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bankruptcy court denying a Motion for Relief from Judgment and/or a
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Continuance of Trial.1
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Trustee of The End of the Road Trust, and American Trailer
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Industries, Inc. (collectively “Appellees”) urge the court to
Appellees Daniel W. Harrow, as Successor
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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.
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affirm.2
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Greer allegedly provided inadequate representation during the trial
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and pretrial stages of this case. For the reasons discussed herein,
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the court AFFIRMS the bankruptcy court’s decision.
The heart of Street’s appeal is that his attorney Phillip
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I.
FACTUAL BACKGROUND
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A.
The Action
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On October 7, 1996, Fruehauf Trailer Corporation and related
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entities (“Fruehauf”) filed petitions for relief under Chapter 11
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of the Bankruptcy Code.3
The plan of reorganization provided for
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the creation of a trust to liquidate the debtors’ assets for the
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benefit of Fruehauf’s creditors.4
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Street and Fruehauf entered into a trust agreement creating The End
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of the Road Trust (“the Trust”).5
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Trust from October 1998 to August 2005.6
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(“Harrow”) replaced Street as trustee of the Trust on August 1,
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2005.7
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commenced an adversary action against Street in February 2007 in
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the United States Bankruptcy Court for the District of Delaware.8
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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
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Appellee’s Opening Brief (“Appellee’s Brief”), Docket No. 26.
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Appellant’s Excerpts of Record (“AER”), Docket No. 23, Tab 1 at 6.
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Id.
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Id., Tab 6 at 125.
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Id. at 126.
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Id.
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Appellant’s Supplemental Excerpts of Record (“SER”), Docket No. 28 (June
25, 2012), at 162.
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attorneys’ fees he had incurred defending against claims related to
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his role as former trustee.9
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United States District Court for the District of Delaware, which
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referred the action to the bankruptcy court.
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represented during pretrial and trial phases of the adversary
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action by attorney Phillip Greer.10
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Harrow removed the action to the
Street was
On October 9, 2008, both the adversary action and Street’s
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lawsuit were transferred to the United States Bankruptcy Court for
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the Central District of California.
On October 14, 2008, Harrow
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filed a second adversary proceeding against Street alleging that
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Street had breached the Trust agreement and breached fiduciary
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duties he owed the Trust as well.11
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B.
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The bankruptcy court held a pretrial conference in the
Pretrial Proceedings
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adversary proceeding on November 4, 2009.
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to appear at the conference, although he had appeared at prior
Street’s attorney failed
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Appellees’ Supplemental Excerpts of Record (“SER”), Tab 3 at 19-25,
Docket No. 28.
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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.
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AER, Tab 25 at 427.
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pretrial conferences.12
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dismissed Street’s action for failure to prosecute, and directed
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appellees’ counsel to give Street’s attorney another opportunity to
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address pretrial stipulations in the adversary action.13
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Harrow submitted a pretrial order as directed.
As a consequence, the bankruptcy court
Greer did not
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object, and on December 18, 2009, the court entered an order
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approving the proposed pretrial conference order.14
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listed 81 undisputed or stipulated facts, 31 disputed facts, and
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issues of law regarding to appellees’ claims and Street’s
The order
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counterclaim, identified witnesses, and included an exhibit list.15
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Among these facts are figures comprising Harrow’s damage claim.16
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While Greer signed the proposed order,17 and the proposed order
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indicates that it was jointly submitted, it contains minimal
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information regarding the evidence Street intended to introduce at
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trial, or any of Street’s factual or legal contentions.18
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SER, Tab 27 (“Nov. 4, 2009 Transcript”) at 239.
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Id. at 249-58.
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AER, Tab 3 at 64.
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See generally, id.
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Id. at 65-75.
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Id. at 87.
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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.)
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The bankruptcy court held another pretrial conference on
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January 6, 2010,19 at which the parties discussed their respective
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preparations for trial.
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Greer stated that the exhibits listed in the pretrial order “were
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pretty mutual,” and “derive[d] from the same activities.”20
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suggested that he would seek to offer a final expert report
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prepared by Dennis Sinclair, whom he intended to call as a
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witness.21
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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
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questions regarding the precise issues to be tried.22
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discussions at the pretrial conference, the parties submitted an
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amended proposed pretrial conference order that once again stated
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it was jointly submitted, and the pleading was signed by counsel
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for both parties.23
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stipulated facts and 31 disputed facts found in the prior order,
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set forth issues of law to be resolved by the court, and identified
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witnesses and exhibits.
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few references to Street’s exhibits, witnesses, or contentions.
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Although the order stated that appellees were “trial ready” and
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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
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Based on
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AER, Tab 26 at 260.
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Id. at 264.
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Id. at 264, 272-73.
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Id. at 274-85.
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AER, Tab 4 at 91-116.
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the pleading is silent regarding Street’s readiness or trial time
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estimates.24
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The bankruptcy court signed and filed the amended pretrial
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conference order and served it to the parties on January 14,
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2010.25
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confirming that he intended to call Street and Sinclair as
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witnesses at trial.26
That same day, Greer filed an amendment to the order
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C.
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The bankruptcy court presided over a two-day trial on February
The Trial
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3-4, 2010.
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number of stipulated exhibits and undisputed rebuttal exhibits.27
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Street was present in the courtroom during a substantial portion of
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the trial.28
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Six witnesses testified, and the parties introduced a
The bankruptcy court made several evidentiary rulings during
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the trial, some of which excluded exhibits that had not been
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produced in discovery.29
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court prohibited Street from offering testimony that contradicted
On several occasions, the bankruptcy
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Id. at 113.
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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.)
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AER, Tab 5 at 117-20.
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SER, Tabs 27-28.
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SER, Tab 28 at 337.
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SER, Tab 28 at 355-57.
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stipulated facts in the amended pretrial order.30
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dispute whether Street testified under oath that he did not dispute
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the validity of any of the stipulated facts.
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at the conclusion of the appellees’ case, appellees’ counsel Robert
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Kugler, stated:
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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
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The following morning, on direct examination by Greer, Street
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testified:
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“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
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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.)
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Id. at 325.
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Id. at 337.
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Appellees contend in this testimony Street conceded the accuracy of
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the stipulated facts set forth in the amended pretrial order.
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Street argues that he agreed only to certain uncontroversial
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stipulated facts cited by Harrow’s counsel the previous day, such
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as those concerning creation of the trust.33
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Later that day, Greer attempted to qualify Dennis Sinclair as
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a damages expert.
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his opinions were based on certain documents Street had withheld
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during discovery, and Greer withdrew Sinclair’s testimony.34
Appellees objected after Sinclair testified that
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Street, who was present in the courtroom, did not object to the
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withdrawal.
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The parties filed post-trial briefs on February 18, 2010.35
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On March 5, 2010, the bankruptcy court issued a memorandum opinion
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and entered judgment in favor of appellees, awarding them
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approximately $7 million in damages.36
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Harrow on Street’s counterclaim for indemnification.37
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D.
The court also found for
The Direct Appeal
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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.)
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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.
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AER, Tab 25 at 433.
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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.
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Id.
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After entry of judgment, Street obtained new counsel, James
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Hayes.38
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March 25, 2010,39 raising three issues: (1) the bankruptcy court
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erred in applying Delaware trust law;(2) there was insufficient
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evidence to show that Street breached his fiduciary duties and/or
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violated the trust agreement, and (3) the bankruptcy court abused
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its discretion in making certain evidentiary rulings during
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trial.40
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Hayes appealed the judgment to the district court on
Hayes submitted an opening brief on June 18, 2010, and a
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corrected brief on June 22, 2010.41
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the first two issues identified for appeal; it did not address any
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of The bankruptcy court’s evidentiary rulings at trial.42
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opening brief did, however, make the following statement regarding
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Greer’s performance as trial counsel:
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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
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The opening brief argued only
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See SER, Tab 2.
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See AER, Tab 8.
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See id.
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See SER, Tab 4.
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Id. at 34.
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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
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These paragraphs constitute the brief’s sole reference to the
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bankruptcy court’s evidentiary rulings and Greer’s performance as
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trial counsel.
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agreement of the parties, the Amended PTO set forth 81 stipulated
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facts,” and that “[d]uring the two-day trial, Appellant firmly
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defended his actions as trustee as being absolutely shielded by
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provisions of the trust agreement.”44
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The opening brief also asserted that “[b]y
This court affirmed the bankruptcy court’s judgment on May 23,
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2011.
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(C.D. Cal. May 23, 2011).
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correctly applied Delaware law and that there was substantial
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evidence to support the judgment.
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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.
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E.
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While the appeal was pending, on March 4, 2011, Hayes served
Street’s Rule 60 Motions
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and filed a substitution of attorney in the bankruptcy court, which
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substituted Street pro se.45
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Street filed two documents: a motion for relief from judgment under
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Rule 60(b), and an application to file the motion under seal.46
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The parties dispute the date these documents were actually filed;
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the copies submitted to the court bear file-stamps of March 7,
Three days later, on March 7, 2011,
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Id. at 38-39.
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Id. at 37, 49.
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45
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See SER, Tab 7. Hayes did not withdraw or file a similar substitution
of counsel in the district court appeal.
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See AER, Tabs 9-10.
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2011, and electronic docket notations indicating that they were
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entered on March 8, 2011.47
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for relief from judgment on March 11, 2011.48
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opposition and a motion to strike the March 7 application to file
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under seal and the March 11 motion.49
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scheduled a hearing for May 19, 2011.50 The bankruptcy court
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considered Street’s additional motions at the May 19 hearing.
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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
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60(b)(1); (2) newly discovered evidence under Rule 60(b)(2); and
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(3) fraud on the court under Rule 60(b)(3).51
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under Rule 60(b)(1) was based on Greer’s allegedly inadequate
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representation and focused primarily on Greer’s agreement to
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stipulate to the facts set forth in the amended pretrial conference
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order, as this had played a role in the court’s entry of judgment
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against Street.52
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cite that provision in his moving papers.
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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
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As discussed below, there is some confusion in the record as to when
these pleadings were actually filed.
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See AER, Tab 12.
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See AER, Tabs 13-14; SER, Tab 9.
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AER, Tab 13 at 249.
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AER, Tab 12 at 219-24.
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Id.
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court.53
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entertain the motions as they were filed while the case was pending
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before this court on appeal.
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addressed whether Street’s March 11 Rule 60(b) motion and his April
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20 Rule 60(b) motion had been timely filed:
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He concluded, inter alia, that he lacked jurisdiction to
Several of the orders nonetheless
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“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
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F.
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Before the bankruptcy court issued its June 9, 2011, orders,
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The Order Being Appealed
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on May 31, 2011, a document titled “Motion for relief from judgment
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and continuation of trial” appeared on the bankruptcy court’s
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docket.55
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Street filed for the first time on May 31, or whether it was in
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actuality the “missing” March 7, 2011, motion that Street claimed
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to have filed originally along with his March 7 application to
The parties dispute whether this was a new motion that
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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).
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AER, Tab 20 at 397.
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AER, Tab 25 at 442 (Docket Entry 149).
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seal, which appeared late on the docket due to a docketing error.
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The bankruptcy court’s docket entry associated with the filing
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contains a notation that the document was “ORIGINALLY FILED
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3/7/11,” even though it was entered almost three months later.56
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The document itself bears a file stamp of March 7, 2011.57
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to Street’s other motions, the May 31, 2011, filing raised
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arguments under Rule 60(b)(1)-(3).
Similar
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On October 4, 2011, the bankruptcy court issued an Order
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denying Street’s May 31 Rule 60(b) Motion, which is the subject of
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the instant appeal.58
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observed that despite the March 7, 2011, file-stamp on the
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document, the accompanying proof of service was not dated and also
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misstated the mailing address for appellee’s counsel.59
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facts, the bankruptcy court stated, suggested that both service and
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timeliness were in issue and that the court therefore could not
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conclude that the May 31, 2011, docket entry should “relate back”
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to the March 7, 2011, file stamp date.60
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As to timely filing, the bankruptcy court
These
The bankruptcy court also held that even if Street’s motion
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related back to March 7, the motion would still fail for a number
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of reasons.
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remained pending on appeal, thereby divesting the bankruptcy
First, as of March 7, the bankruptcy court’s judgment
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Id.
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AER, Tab 19 at 357.
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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.
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court’s jurisdiction over the matter.61
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Ins. Co. of N.Y., 790 F.2d 769, 772 (9th Cir. 1986).
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bankruptcy court held that Street “cannot overcome the effect of
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the District Court’s May 23 ruling affirming the Judgment,” which
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Street had not appealed.62
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these circumstances rendered Street’s Rule 60 motions moot.63
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See Gould v. Mut. Life
Second, the
The bankruptcy court suggested that
Finally, the bankruptcy court addressed the merits of Street’s
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Rule 60(b) arguments.
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discovered evidence and purported “fraud on the court” largely
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relied on the same factual contentions, and although it did not
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explicitly state that it was doing so, he appears to have addressed
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those arguments together.
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Street had offered no explanation as to the timing of when these
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“newly discovered” motions had surfaced, and had proffered no
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suggestion that they could not have been raised within the time
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requirements of Rule 60(b)(2).64
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evidence Street had proffered, and stated that they did “not negate
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the facts . . . showing that Defendant, himself, breached his duty
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to the trust,” and that Street was not absolved of liability simply
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“because Plaintiff may have breached his own duties.”65
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Street’s argument of excusable neglect based on Greer’s deficient
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representation, the court concluded:
Street’s arguments regarding newly-
The bankruptcy court observed that
The court also examined the
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Id. at 415.
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Id.
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Id. at 415-16.
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Id. at 416.
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Id. at 416-17.
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As for
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“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
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As Street’s motion did not explicitly address relief under Rule
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60(b)(6), the court did not address that provision.
Finding that
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Street had failed to raise any meritorious basis for relief under
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Rule 60(b), the bankruptcy court denied his motion.
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Street engaged a third lawyer, Christopher Pitet, shortly
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before the hearing on his May 31 Rule 60(b) motion, who is
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representing him through this appeal.
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II.
DISCUSSION
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A.
Standard of Review
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District Courts have jurisdiction to hear appeals from final
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judgments, orders or decrees of the bankruptcy court.
28 U.S.C. §
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158(a).
“When reviewing a bankruptcy court’s decision . . . a
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district court functions as a[n] appellate court and applies the
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standard of review generally applied in the federal court[s] [of]
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appeal[].”
In re Webb v. Reserve Life Ins. Co., 954 F.2d 1102,
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1103-04 (5th Cir. 1992).
The district court must accept the
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bankruptcy court’s findings of fact unless they are clearly
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erroneous.
See In re Banks, 263 F.3d 862, 867 (9th Cir. 2001). A
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AER, Tab 23 at 417.
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finding is clearly erroneous “‘when although there is evidence to
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support it, the reviewing court on the entire evidence is left with
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the definite and firm conviction that a mistake has been
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committed.’” Id. at 869 (9th Cir. 2001) (quoting Anderson v.
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Bessemer City, 470 U.S. 564, 573 (1985)).
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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
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