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 2022-03

James Grove v. Sarine Nigolian ( 2022 )


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  •                                  NOT FOR PUBLICATION                     FILED
UNITED STATES COURT OF APPEALS                   MAR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: JAMES ALVIN GROVE,               No.   21-55843
Debtor,                         D.C. No. 8:21-cv-00408-DOC
------------------------------
SARINE NIGOLIAN; GRANT NIGOLIAN, MEMORANDUM*
Plaintiffs-Appellees,
v.
JAMES ALVIN GROVE,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted March 10, 2022**
Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and MOLLOY, *** District
Judge.
*
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).
***
The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
Sarine and Grant Nigolian filed an adversary complaint against James Grove,
a Chapter 7 debtor. Although Grove was personally served with the complaint, he
claimed the bankruptcy court lacked personal jurisdiction because the Nigolians
failed to also serve his bankruptcy counsel, Michael Nicastro, as required by Federal
Rule of Bankruptcy Procedure 7004(g). The bankruptcy court granted Grove’s
motion. The district court vacated the dismissal, finding that Grove had waived any
objection to the failure to serve counsel. We review the district court’s decision de
novo, see In re Saxman,
    325 F.3d 1168
    , 1172 (9th Cir. 2003), and may affirm on any
ground supported by the record, see In re Parker N. Am. Corp.,
    24 F.3d 1145
    , 1151
(9th Cir. 1994).
Bankruptcy Rule 7004(g) provides that if a “debtor is represented by an
attorney,” service “shall also be made upon the debtor’s attorney by any means
authorized under Rule 5(b) F. R. Civ. P.” Contrary to Grove’s arguments and the
apparent assumption of the bankruptcy court, Rule 7004(g) is not a jurisdictional
provision. See Kontrick v. Ryan,
    540 U.S. 443
    , 453–54 (2004); see also United
Student Aid Funds, Inc. v. Espinosa,
    559 U.S. 260
    , 272 (2010). Therefore, the
relevant question is whether Grove was prejudiced by the failure to serve his
bankruptcy counsel. See United Food & Com. Workers Union, Locs. 197 v. Alpha
Beta Co.,
    736 F.2d 1371
    , 1382 (9th Cir. 1984) (reasoning that dismissal “is generally
not justified absent a showing of prejudice”).
2
There is no evidence that Grove was prejudiced by the failure to serve
bankruptcy counsel. Grove hired another lawyer, Michael Spector, to handle the
adversary complaint. Spector timely filed an answer and participated fully in the
adversary proceedings. There is no indication that those proceedings were delayed
or affected by the failure to serve Nicastro. Indeed, Spector indicated in a July 2020
joint status report, filed over a month before the motion to dismiss, that he would be
ready for trial as soon as October 2020. Because the bankruptcy court erred in
dismissing the adversary complaint, we affirm the district court.
AFFIRMED.
3