Loren Miller v. Andrew Geller , 696 F. App'x 298 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: LOREN MILLER; SARAH No. 16-55732
MILLER,
D.C. No. 2:16-cv-00258-SJO
Debtors,
______________________________
MEMORANDUM*
LOREN MILLER,
Appellant,
v.
ANDREW D. GELLER; ANDREW D. &
EILEEN B. GELLER, Trustees of the Geller
Trust Dated September 2, 1987,
Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
*
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).
Chapter 7 debtor Loren Miller appeals pro se from the district court’s order
dismissing for failure to prosecute his appeal from the bankruptcy court. We have
jurisdiction under 28 U.S.C. § 158(d). We review for an abuse of discretion.
Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002). We affirm.
The district court did not abuse its discretion by dismissing Miller’s appeal
because Miller failed to comply with the district court’s orders instructing him to
prosecute the appeal, including filing the designations of record, statement of
issues on appeal, and notice regarding the ordering of transcripts with the
bankruptcy court. See id. at 642-43 (discussing the five factors for determining
whether to dismiss under Fed. R. Civ. P. 41(b) for failure to comply with a court
order); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (although dismissal
is a harsh penalty, the district court’s dismissal should not be disturbed absent “a
definite and firm conviction” that it “committed a clear error of judgment” (citation
and internal quotation marks omitted)).
The district court did not abuse its discretion by denying Miller’s motion for
reconsideration of the dismissal of his appeal because Miller failed to demonstrate
any basis for relief. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5
F.3d 1255, 1262 (9th Cir. 1993) (setting forth grounds for relief from judgment
2 16-55732
under Rule 60 of the Federal Rules of Civil Procedure).
We reject as meritless Miller’s contentions regarding alleged judicial bias.
Miller’s request to take judicial notice of the underlying proceedings, set
forth in his opening brief, is denied as unnecessary.
AFFIRMED.
3 16-55732