Dan Halvorson v. Weneta Kosmala ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of JOHN OLAF HALVORSON,
Debtor.
WENETA M.A. KOSMALA, solely in her ca- No. 19-55097
pacity as Chapter 7 Trustee of the Bankruptcy D.C. No. 8:18-cv-00519-JVS
Estate; RICHARD BAEK; BAEK 153, LLC; PA-
CIFIC COMMERCIAL GROUP, LLC,
Plaintiffs-Appellees,
v.
DAN L. HALVORSON, an individual; JERRY
ANN RANDALL, an individual,
Defendants-Appellants.
WENETA M.A. KOSMALA, solely in her ca- No. 19-55099
pacity as Chapter 7 Trustee of the Bankruptcy D.C. No. 8:18-cv-00519-JVS
Estate,
Plaintiff-Appellant,
and
RICHARD BAEK; BAEK 153, LLC; PACIFIC
COMMERCIAL GROUP, LLC,
Plaintiffs,
v.
DAN L. HALVORSON, an individual; JERRY
ANN RANDALL, an individual,
Defendants-Appellees.
WENETA M.A. KOSMALA, solely in her ca- No. 19-55100
pacity as Chapter 7 Trustee of the Bankruptcy D.C. No. 8:18-cv-00520-JVS
Estate; RICHARD BAEK; BAEK 153, LLC; PA-
CIFIC COMMERCIAL GROUP, LLC,
Plaintiffs-Appellees,
COREY TOLLIVER; CHRISTOPHER COYLE,
Appellees,
v.
DAN L. HALVORSON, an individual; JERRY
ANN RANDALL, an individual,
Defendants-Appellants.
WENETA M.A. KOSMALA, solely in her ca- No. 19-55102
pacity as Chapter 7 Trustee of the Bankruptcy D.C. No. 8:18-cv-00520-JVS
Estate,
Plaintiff-Appellant,
COREY TOLLIVER; CHRISTOPHER COYLE,
Appellees,
and
RICHARD BAEK; BAEK 153, LLC; PACIFIC
COMMERCIAL GROUP, LLC,
Plaintiffs,
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v.
DAN L. HALVORSON, an individual; JERRY
ANN RANDALL, an individual,
Defendants-Appellees.
WENETA M.A. KOSMALA, solely in her ca- No. 19-55105
pacity as Chapter 7 Trustee of the Bankruptcy D.C. No. 2:18-cv-07046-JVS-RAO
Estate,
Plaintiff-Appellant,
and
RICHARD BAEK; PACIFIC COMMERCIAL
GROUP, LLC; BAEK 153, LLC,
Plaintiffs,
v.
DAN L. HALVORSON, an individual; JERRY
ANN RANDALL, an individual,
Defendants-Appellees.
GRACE BAEK, No. 19-55106
D.C. No. 8:18-cv-00525-JVS
Plaintiff-Appellee,
COREY TOLLIVER; CHRISTOPHER COYLE,
Appellees,
v.
WENETA M.A. KOSMALA, solely in her
3
capacity as Chapter 7 Trustee of the Bankruptcy
Estate,
Defendant-Appellant.
GRACE BAEK, No. 19-55107
D.C. No. 8:18-cv-00528-JVS
Plaintiff-Appellee,
v.
MEMORANDUM*
WENETA M.A. KOSMALA, solely in her ca-
pacity as Chapter 7 Trustee of the Bankruptcy
Estate,
Defendant-Appellant.
Appeal from the U.S. District Court
for the Central District of California
James V. Selna, Senior District Judge, Presiding
Submitted February 9, 2021**
Pasadena, California
Before: BOGGS,*** M. SMITH, and MURGUIA, Circuit Judges.
These appeals continue the ongoing saga surrounding John Halvorson’s bank-
ruptcy proceedings, which began in 2015. And precisely because those proceedings
are still ongoing, we have no authority to interfere. Lacking jurisdiction, we dismiss.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Danny J. Boggs, Senior Circuit Judge of the U.S. Court of Ap-
peals for the Sixth Circuit, sitting by designation.
4
1. Grace and Richard Baek are judgment creditors of John Halvorson. They filed
a fraudulent-conveyance claim against him, his mother Jerry Randall, and his brother
Dan Halvorson in the Eastern District of California (District Court No. 2:15-cv-
01425-AB-JPR). John Halvorson then petitioned for bankruptcy protection in the
Central District of California, and Weneta Kosmala was appointed the bankruptcy
trustee.
Ms. Kosmala purported to remove the Baeks’ action from the Eastern District
to the Central District’s bankruptcy court. Although the Eastern District rejected Ms.
Kosmala’s filing, the bankruptcy court docketed the “removed” action as Adversary
Proceeding No. 8:15-ap-1391-MW (the “1391 action”). Ms. Baek filed a separate
declaratory-judgment action in the bankruptcy court, creating Adversary Proceeding
8:15-ap-1454-MW (the “1454 action”).
Later, the bankruptcy court found the Baeks guilty of unclean hands because
of their conduct in court-ordered mediation proceedings. As a result, the bankruptcy
court held that equity precluded them from any relief in either the 1391 or the 1454
action. Shortly afterward, the defectiveness of Ms. Kosmala’s “removal notice”
came to the bankruptcy court’s attention. The bankruptcy court stayed its unclean-
hands judgment to allow the Eastern District to hear the removal issue. The Eastern
District held that Ms. Kosmala’s attempted removal was a nullity, but it nevertheless
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transferred the fraudulent-conveyance case to the Central District (District Court No.
2:18-cv-07046-JVS).
With the matter now properly in the Central District, the district court took up
the question of what effect the defective removal had on the bankruptcy court’s
un⁠clean-hands judgment. Holding that the bankruptcy court had no subject-matter
jurisdiction over the 1391 action (which, according to the district court, was improp-
erly “removed”), the district court vacated the unclean-hands judgment as to that
proceeding and ordered the bankruptcy court to dismiss the 1391 action entirely.
And because the unclean-hands judgment in the 1454 action was tainted by factfind-
ing in the illegal 1391 action, the district court vacated the judgment in that action
as well, remanding for possible retrial on the unclean-hands issue. The district
court’s order also vacated Ms. Kosmala’s then-pending motion to refer the properly
transferred fraudulent-conveyance action to the bankruptcy court and to confirm or
substitute her as the real party in interest. The court instructed Ms. Kosmala to refile
the motion so that it could be rebriefed in light of the vacatur of the unclean-hands
judgments. She did, and the district court granted her motion. The fraudulent-con-
veyance claim now resides in Adversary Proceeding 8:19-ap-1191-MW (the “1191
action”).
Ms. Randall, Dan Halvorson, and Ms. Kosmala now appeal the district court’s
order with respect to its vacatur of the 1391 judgment (corresponding to our case
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numbers 19-55097/099/100/102). Ms. Kosmala also appeals the order with respect
to its vacatur of the 1454 judgment (corresponding to our case numbers 19-
55106/107) and the order’s vacatur of her motion to refer the fraudulent-conveyance
claim (corresponding to our case number 19-55105), which the district court has
since granted.1
2. We have authority to hear appeals in bankruptcy cases under four different
jurisdiction-conferring provisions: (1) 28 U.S.C. § 1291, for final decisions of the
district court “acting in any capacity”; (2) 28 U.S.C. § 1292, for interlocutory ap-
peals, either from certain kinds of orders (not at issue here) or ones certified by the
district court; (3) 28 U.S.C. § 158(d)(1), for appeals from final decisions of the dis-
trict court sitting in its bankruptcy-appellate capacity and of the bankruptcy appellate
panel; and (4) 28 U.S.C. § 158(d)(2), for direct appeals from the bankruptcy court,
the district court, and the bankruptcy appellate panel upon appropriate certification.
In re Gugliuzza, 852 F.3d 884, 889 (9th Cir. 2017) (quoting Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253 (1992)). Because these appeals come to us without cer-
tification, we consider only whether we have jurisdiction under either § 1291 or
§ 158(d)(1).
1
Because the district court granted her motion, we cannot provide “any effective
relief” to Ms. Kosmala on this issue—appeal no. 19-55105 is therefore moot, and
we lack not just statutory but also constitutional grounds for jurisdiction. In re Bur-
rell, 415 F.3d 994, 998 (9th Cir. 2005) (quoting Garcia v. Lawn, 805 F.2d 1400,
1402 (9th Cir. 1986)).
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Although both sections give us jurisdiction only from a “final” decision, we
use different standards to measure finality for each section. Under § 1291, a final
order is one that “ends the litigation on the merits and leaves nothing for the court to
do but execute the judgment.” Williamson v. UNUM Life Ins. Co. of Am., 160 F.3d
1247, 1250 (9th Cir. 1998) (quoting Dannenberg v. Software Toolworks Inc., 16
F.3d 1073, 1074 (9th Cir. 1994)). And that definition is the same regardless of the
source of the appeal. Gugliuzza, 852 F.3d at 890. The idea behind this limit on our
jurisdiction is to require parties to “raise all claims of error in a single appeal,” Fire-
stone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981), so that we do not
dispose of “what for practical purposes is a single controversy” in “piecemeal” fash-
ion, Cobbledick v. United States, 309 U.S. 323, 325 (1940).
Recognizing that bankruptcy cases are different from usual civil litigation be-
cause they involve “‘an aggregation of individual controversies,’ many of which
would exist as stand-alone lawsuits but for the bankrupt status of the debtor,” Bullard
v. Blue Hills Bank, 135 S. Ct. 1686, 1692 (2015) (quoting 1 Collier on Bankruptcy
¶ 5.08[1][b], p. 5–42 (16th ed. 2014)), we instead apply a more flexible, “pragmatic
approach” to finality for appeals arising under § 158(d)(1). See In re Perl, 811 F.3d
1120, 1125 n.3 (9th Cir. 2016). If a bankruptcy court’s decision both “resolves and
seriously affects substantive rights” and “finally determines the discrete issue to
which it is addressed,” then we have found a district court’s affirmance or reversal
8
of such a decision to “be final and immediately appealable.” Gugliuzza, 852 F.3d at
894 (quoting Perl, 811 F.3d at 1126). And if a district court remands a case for fur-
ther proceedings, we apply a four-factor test that weighs “(1) the need to avoid piece-
meal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the
bankruptcy court’s role as the finder of fact; and (4) whether delaying review would
cause either party irreparable harm.” Ibid. (quoting Perl, 811 F.3d at 1126). We de-
part from this general rule only if the district court’s remand order is purely “me-
chanical” or “ministerial.” Id. at 295 (quoting In re Landmark Fence Co., 801 F.3d
1099, 1103 (9th Cir. 2015)).
3. Because there is more litigation pending in these cases, “[w]e have no diffi-
culty concluding that we lack jurisdiction under § 1291.” Gugliuzza, 852 F.3d at 898.
The key question is whether the district court’s order is “final” for purposes of
§ 158(d)(1).
The appeals in case numbers 19-55106/107 are from a classic example of a
district court’s remand for further factfinding. The district court vacated the unclean-
hands judgment against Ms. Baek in the 1454 action and remanded for potential
retrial on the unclean-hands issue. As in Gugliuzza, “the risk of piecemeal litigation
is significant.” 852 F.3d at 899 (quoting Landmark Fence, 801 F.3d at 1103). It
would be more efficient for the bankruptcy court first to retry the unclean-hands
issue and then resolve the underlying declaratory action before we hear the case so
9
that we can resolve the parties’ dispute “as a whole.” Ibid. And “we interfere with
the bankruptcy court’s fact-finding role” by taking jurisdiction before that process
concludes. Ibid. (quoting King v. Stanton (In re Stanton), 766 F.2d 1283, 1287 (9th
Cir. 1985)). Last, we discern no irreparable harm from allowing the proceeding to
continue in its normal course before we hear the appeal. Thus, the district court’s
order as to the 1454 action is not final, and we have no jurisdiction to hear any ap-
peals from it.
4. By contrast, there is some question over the best characterization of the district
court’s order with respect to the 1391 action. If it was a reversal of a final bank-
ruptcy-court order (as determined by the two-factor test from above), then it was
final for purposes of § 158(d). Id. at 894. If it was a remand with a direction to do a
purely ministerial task before entering judgment, then it was also final. And if it was
a remand for further factfinding, we again need to apply the four-factor test from
above to determine if it was final.
We think the best characterization of the order with respect to the 1391 action
is as a remand for further factfinding. Although the district court vacated the un-
clean-hands judgment and ordered remand to the bankruptcy court to dismiss the
action for lack of jurisdiction, the fraudulent-conveyance claim underlying that ac-
tion had been (properly) transferred to the district court from the Eastern District.
Shortly afterward, the district court referred that claim to the bankruptcy court, and
10
it remains pending there in the 1191 action. Indeed, it is conceivable that an unclean-
hands trial might be had in the 1191 action for the Baeks’ previous conduct, which
would necessitate further factfinding on the same issue. Although formally under a
different adversary proceeding number, essentially the same litigation will continue.
Now, applying the four-factor test from before, we again conclude that the
district court’s order was not final as to the 1391 action. Even if we were to decide
whether the Central District’s bankruptcy court had jurisdiction over the “removed”
action, there may yet be another appeal on the merits of the claim, leading us to
dispose of what is practically a single controversy in piecemeal fashion. As with the
1454 action, it would be more efficient for us to hear just one appeal so that we may
resolve as much of the case as possible. We would be interfering with the factfinding
function of the bankruptcy court by taking the appeal now. And we again discern no
irreparable harm to the parties.2
APPEALS DISMISSED.
2
Two appellants assert that they will be unable to obtain review of the district court’s
dismissal order if they are not heard now. But they cite no authority for that propo-
sition, and it is not clear to us that it is true. See Grand Canyon Tr. v. Tucson Elec.
Power Co., 391 F.3d 979, 986 (9th Cir. 2004) (“It is well settled, however, that an
‘appeal from the final judgment draws in question all earlier non-final orders and all
rulings which produced the judgment.’”) (quoting Munoz v. Small Bus. Admin., 644
F.2d 1361, 1364 (9th Cir. 1981)). And even if it be true, they might have only them-
selves to blame for that state of affairs by failing to ask the district court to certify
the order for interlocutory appeal. See Bullard, 135 S. Ct. at 1695–96.
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