Shmuel Erde v. Theodor Bodnar ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: SHMUEL ERDE, No. 20-60001
Debtor. BAP No. 19-1022
------------------------------
MEMORANDUM*
SHMUEL ERDE,
Appellant,
v.
THEODOR NICKOLAS BODNAR; et al.,
Appellees.
In re: SHMUEL ERDE, No. 20-60003
Debtor. BAP No. 19-1139
------------------------------
SHMUEL ERDE,
Appellant,
v.
THEODOR NICKOLAS BODNAR; et al.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appellees.
Appeals from the Ninth Circuit
Bankruptcy Appellate Panel
Gan, Taylor, and Spraker, Bankruptcy Judges
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
In these consolidated appeals, chapter 11 debtor Shmuel Erde appeals pro se
from the Bankruptcy Appellate Panel’s (“BAP”) decision affirming the bankruptcy
court’s orders (1) sua sponte dismissing his adversary proceeding against Theodor
Nickolas Bodnar and others, and imposing a pre-filing restriction on Erde as a
vexatious litigant and (2) denying Erde’s request for permission to file a motion to
alter or amend a judgment. We have jurisdiction under 28 U.S.C. § 158(d). We
review de novo the bankruptcy court’s conclusions of law and for clear error its
findings of fact. Decker v. Tramiel (In re JTS Corp.), 617 F.3d 1102, 1109 (9th
Cir. 2010). We affirm.
The bankruptcy court properly dismissed Erde’s adversary proceeding
because the claims were actually litigated and decided in prior actions among the
parties that resulted in final adjudication on the merits, or could have been raised in
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 20-60001
20-60003
the prior actions. See 11 U.S.C. § 105(a) (setting forth bankruptcy court’s
equitable power to “issue any order, process, or judgment that is necessary or
appropriate to carry out the provisions of this title” including sua sponte action
“necessary or appropriate to enforce or implement court orders or rules, or to
prevent an abuse of process”); Howard v. City of Coos Bay, 871 F.3d 1032, 1040-
42 (9th Cir. 2017) (requirements for issue preclusion under federal law); Owens v.
Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713-14 (9th Cir. 2001)
(requirements for claim preclusion under federal law); see also Reyn’s Pasta Bella,
LLC v. Visa USA, Inc., 442 F.3d 741, 745 (9th Cir. 2006) (standard of review for
application of issue preclusion and claim preclusion).
The bankruptcy court did not abuse its discretion by declaring Erde a
vexatious litigant after providing notice and an opportunity to be heard, developing
an adequate record for review, making substantive findings as to the frivolous or
harassing nature of Erde’s litigation history, and narrowly tailoring its prohibition
on future filings to those in bankruptcy court against the named Bodnar defendants,
as to whom Erde had been filing vexatiously. See Ringgold–Lockhart v. County of
Los Angeles, 761 F.3d 1057, 1061-67 (9th Cir. 2014) (setting forth standard of
review and procedural and substantive standards for a federal pre-filing order
based on a vexatious litigant determination).
We reject as without merit Erde’s contention that the BAP erred by denying
3 20-60001
20-60003
his request for publication.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions and requests are denied.
AFFIRMED.
4 20-60001
20-60003