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John Donnelly, Jr. v. American Express Bank, Fsb ( 2019 )


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  •                              NOT FOR PUBLICATION                         FILED
UNITED STATES COURT OF APPEALS                        JUL 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JOHN ROLAND DONNELLY, Jr.,               No.    18-56302
Debtor.                            D.C. No. 3:18-cv-01024-GPC-
______________________________                  WVG
JOHN ROLAND DONNELLY, Jr.,
MEMORANDUM*
Appellant,
v.
AMERICAN EXPRESS BANK, FSB,
Appellee.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Submitted July 15, 2019**
Before:      SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
Chapter 13 debtor John Roland Donnelly, Jr., appeals from the district
court’s judgment affirming the bankruptcy court’s order denying his motion for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
attorney’s fees and his discovery-related motions. We have jurisdiction under
    28 U.S.C. § 158
    (d). We review de novo a district court’s decision on appeal from a
bankruptcy court, and apply the same standard of review the district court applied
to the bankruptcy court’s decision. Christensen v. Tucson Estates, Inc. (In re
Tucson Estates, Inc.),
    912 F.2d 1162
    , 1166 (9th Cir. 1990). We affirm.
The bankruptcy court did not abuse its discretion by denying Donnelly’s
motion for attorney’s fees under California Civil Code § 1717 given that American
Express Bank, FSB’s (“AmEx”) did not oppose Donnelly’s objection to the claim.
See
    Cal. Civ. Code § 1717
    ; D & J, Inc. v. Ferro Corp.,
    222 Cal. Rptr. 656
    , 658 (Ct.
App. 1986) (explaining that for purposes of § 1717, a dismissal is voluntary where
it is predicated upon “a clear, unequivocal and express intent to abandon an action”
(citation omitted)).
The bankruptcy court did not abuse its discretion in disallowing Donnelly’s
discovery because discovery was rendered moot by AmEx’s nonopposition to
Donnelly’s objection to the claim and the bankruptcy court’s finding that Donnelly
was not the prevailing party on the contract claim. See Hallett v. Morgan,
    296 F.3d 732
    , 751 (9th Cir. 2002) (setting forth standard of review and noting the
district court’s broad discretion in deciding motions to compel discovery).
The district court did not abuse its discretion by declining to consider
Donnelly’s contentions, raised for the first time in his reply brief in support of his
2                                     18-56302
motion to compel discovery, that AmEx failed to comply with the Federal Rule of
Bankruptcy Proceedings 3001(c)(3)(B). See Zamani v. Carnes,
    491 F.3d 990
    , 997
(9th Cir. 2007) (“The district court need not consider arguments raised for the first
time in a reply brief.”).
AFFIRMED.
3                                    18-56302