United States Bankruptcy Appellate Panel of the Ninth Circuit
In re: CAREY A. ROESSLER-LOBERT, Debtor
CAREY A. ROESSLER-LOBERT; JERRY NAMBA, Appellees. [*] MARY LEE, in her capacity as Personal Representative of the Estate of Juliana March, Appellant, Bk. No. 9:15-bk-11174-PC Adv. Pro. 9:15-ap-01065-PC
and Submitted on February 23, 2017 at Pasadena, California
from the United States Bankruptcy Court for the Central
District of California Honorable Peter H. Carroll, Bankruptcy
Seymour I. Amster argued on behalf of Appellant Mary Lee.
Before: FARIS, CLEMENT, [**] and TAYLOR, Bankruptcy
Mary Lee, in her capacity as personal representative of the
Estate of Juliana March, appeals from the bankruptcy
court's order dismissing her adversary complaint against
chapter 7 debtor Carey A. Roessler-Lobert. Although
the bankruptcy court was understandably frustrated with Ms.
Lee's attorney's misrepresentations and noncompliance
with the applicable court order and rules, it abused its
discretion in dismissing the complaint at the initial status
and scheduling conference. Accordingly, we REVERSE the
dismissal order and REMAND this case to the bankruptcy court.
2, 2015, Ms. Roessler-Lobert, proceeding pro se, filed a
chapter 7 petition in the United States Bankruptcy Court for
the Central District of California. On September 3, Ms. Lee,
though her attorney, Seymour I. Amster, timely filed an
adversary complaint to determine
same day, the bankruptcy court promptly issued the summons
required by Rule 7004 via CM/ECF. The summons set a status
and scheduling conference for November 5, 2015 and required
Ms. Roessler-Lobert to respond to the adversary complaint by
October 5, 2015.
court simultaneously issued a scheduling conference order
regarding the Civil Rule 26(f) meeting, initial disclosures,
and Civil Rule 16(b) status conference. The scheduling
conference order directed the plaintiff to serve a copy of
the scheduling conference order with the summons. It also
directed the parties to meet and confer at least twenty-one
days prior to the November 5 status conference; discuss the
nature of their claims and defenses, arrange for initial
disclosures, discuss discovery issues, and propose a
discovery plan; make initial disclosures; consider
alternative dispute resolution; and file a joint status
report no later than seven days before the status conference.
According to the notice of electronic filing, the bankruptcy
court e-mailed CM/ECF notification of the scheduling
conference order to Mr. Amster's e-mail address on record
with the court and mailed a hard copy to his address in
Granada Hills, California, which was listed on the complaint.
Amster failed to timely serve Ms. Roessler-Lobert with the
summons and scheduling conference order. At some point, he
logged into his CM/ECF account and retrieved the summons and
scheduling conference order. He attempted service on Ms.
Roessler-Lobert on October 17, and she received the documents
on October 20 - fifteen days after her deadline to respond to
the complaint and only sixteen days before the status
conference. Mr. Amster did not file a proof of service of the
summons with the court.
November 1, four days before the status conference, Mr.
Amster called Ms. Roessler-Lobert and asked her to agree that
they had met and conferred ahead of the status conference.
According to Ms. Roessler-Lobert, the call lasted about eight
minutes and "he said that he was just going to go ahead
and file a unilateral statement. . . . [B]asically it was
just about as far as whether or not to meet and confer and
just say that I have." At approximately 8:15 pm the
night before the conference, Mr. Amster filed a unilateral
status report on behalf of Ms. Lee.
Amster did not appear at the November 5 status conference;
instead, attorney Laura Dewey made a special appearance in
his place. Ms. Dewey represented to the court that Mr. Amster
was involved in a death penalty trial. She stated that Ms.
Roessler-Lobert had not answered the complaint and requested
that the court continue the status conference.
Roessler-Lobert explained to the court that she had only
received the summons on October 20 and that Mr. Amster had
called her four days prior and asked her to agree that they
had met and conferred. The court noted that, in addition to
the tardy service of the summons and the late
meet-and-confer, Ms. Lee had not filed a status
report or a proof of service of the summons. In
response, Ms. Dewey said that Mr. Amster has "been stuck
in this very long-standing death penalty case and has simply
fallen behind in his administrative work in his
court dismissed the case for want of prosecution, failure to
file a status report that Local Bankruptcy Rule
("LBR") 7016-1 requires, and violation of the
scheduling conference order. It entered an order
("Dismissal Order") dismissing the adversary
proceeding the same day.
filed a timely motion to set aside or reconsider the
Dismissal Order ("Motion for Reconsideration"). Mr.
Amster, on behalf of Ms. Lee, argued that he did not receive
a copy of the summons or scheduling conference order because
the court mistakenly sent the hard copy to an old address.
(This was a false statement.) He logged into CM/ECF at an
unspecified date and found the summons, then served the
summons, complaint, and scheduling conference order on Ms.
Roessler-Lobert on October 17.
that he called Ms. Roessler-Lobert on November 1 to obtain
her support in creating a joint status report. He said that
she did not understand what she was supposed to do, so he
told her that he would file a unilateral status report.
Amster explained that he was unable to personally attend the
November 5 status conference because he was involved in the
so-called "Grim Sleeper" death penalty case and
"was devoting a significant amount of his time to that
matter which caused the delays in this matter."
Amster again did not show up for the hearing on the Motion
for Reconsideration. Rather, attorney William C. Beall
appeared on behalf of Ms. Lee. Mr. Beall argued that the
court should reconsider the Dismissal Order based on Mr.
Amster's neglect. He represented that "the hard copy
summons [went] to the wrong address, so [Mr. Amster]
didn't see it, and then he eventually did go into ECF and
got it." He repeatedly reminded the court that Mr.
Amster was "involved in a multiple murder death penalty
case down south. He got himself in too deep in this case. He
wasn't able to give it the attention that it deserved,
and so now, however, he is."
court was unsympathetic. It said that the court routinely
issues the summons and scheduling conference order in every
adversary proceeding. The scheduling conference order
requires the plaintiff to contact the defendant and arrange a
Civil Rule 26(f) meeting no later than twenty-one days prior
to the status conference. It also stated that the local
bankruptcy rules require the plaintiff to file a status
report fourteen days prior to the status conference and to
appear at the status conference.
court rejected Mr. Amster's excuse for not timely serving
the summons. It said that the court had e-mailed notice of
the issuance of the summons to Mr. Amster's e-mail
address of record on September 3, and nothing "indicates
that he even bothered to check his e-mail for the summons
that he asked for from the Court." The court also
rejected Mr. Amster's attempt to blame the court for
mailing the documents to an incorrect address: "He
claims in his defense in his motion for reconsideration -
that the Court sent the summons by regular mail to an
incorrect address. That's not what happened. The Court
didn't send a summons to an incorrect address. The Court
sent the summons to him electronically with an ECF notice,
just like the Court's supposed to, the day the summons
was issued." The court noted that Mr. Amster had
neglected to pay attention to this case and inquire after the
summons for over a month.
court also discussed Mr. Amster's failure to comply with
Civil Rule 26(f). It said that he only contacted Ms.
Roessler-Lobert a few days before the status conference; he
did not file a status report until the night before the
status conference; and he tried to convince Ms.
Roessler-Lobert to agree that the short telephone call
satisfied the meet-and-confer requirement. The court stated
that "[t]hat's not what the order envisioned."
the court denied the Motion for Reconsideration. It clarified
that the basis for dismissal was not merely the failure to
serve the summons timely, but also the failure to comply with
LBR 7016-1, Civil Rule 26, and the scheduling conference
order. The court stated that, contrary to Mr. Amster's
representations, the summons and scheduling conference order
were sent to Mr. Amster's e-mail address of record,
the scheduling conference order was also mailed to the
Granada Hills address on record. The court concluded:
Counsel failed to check his e-mail for notice that the
summons had been issued; failed to timely serve the summons,
order, and complaint on the defendant; failed to file a proof
of service of the summons with the Court; failed to initiate
the Rule 26(f) conference, as ordered by the Court; and
failed to timely file a status report. These omissions
involve a complete lack of diligence in following the rules
of this Court, which are unambiguous.
court issued its order ("Reconsideration Order")
denying the Motion for Reconsideration. Ms. Lee timely
appealed from the Dismissal Order and the Reconsideration
bankruptcy court had jurisdiction pursuant to 28 U.S.C.
§§ 1334 and 157(b)(1). We have jurisdiction under
28 U.S.C. § 158.
the bankruptcy court erred in dismissing Ms. Lee's
review for abuse of discretion the bankruptcy court's
dismissal of a complaint for failure to comply with the rules
or court order. See Schmidt v. Herrmann, 614 F.2d
1221, 1224 (9th Cir. 1980). Similarly, the bankruptcy
court's dismissal of an adversary proceeding based upon a
plaintiff's failure to prosecute is reviewed for an abuse
of discretion. See Al-Torki v. Kaempen, 78 F.3d
1381, 1384 (9th Cir. 1996); Moneymaker v. CoBen (In re
Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994).
review for abuse of discretion the bankruptcy court's
denial of a motion for reconsideration. See First Ave. W.
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