Shirley McClure v. Barrett Litt ( 2014 )

FILED
NOT FOR PUBLICATION DEC 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHIRLEY ANN MCCLURE; SHIRLEY No. 12-56637
ANN MCCLURE, AKA Shirley Foose
McClure, DBA Sam Marketing Services, D.C. No. 2:09-cv-09400-GW
Appellants,
MEMORANDUM*
v.
BARRETT STEPHEN LITT, Esquire,
Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted December 12, 2014
Pasadena, California
Before: PREGERSON, BERZON, and BEA, Circuit Judges.
Shirley Ann McClure appeals the district court’s order affirming the
decision of the bankruptcy court to award Barrett Litt attorney’s fees in the amount
of $10,104,503.57. We “will not disturb a bankruptcy court’s award of attorneys’
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
fees unless the bankruptcy court abused its discretion or erroneously applied the
law.” Kord Enters. II v. Cal. Commerce Bank, 139 F.3d 684, 686 (9th Cir. 1998).
We have jurisdiction under 28 U.S.C. § 158(d). We affirm the district court’s
order dated August 10, 2012, affirming the bankruptcy court’s attorney’s fee award
of August 31, 2009.
The attorney’s fee award stems from Litt’s representation of McClure in her
suit against the City of Long Beach, California. Long Beach unlawfully prevented
McClure from creating several facilities dedicated to the care of individuals
suffering from Alzheimer’s disease. In 1990, as a result of Long Beach’s illegal
harassment and other retaliatory actions, McClure filed for voluntary Chapter 11
Bankruptcy in the Bankruptcy Court for the Central District of California. In 1993,
the bankruptcy court appointed Litt as Special Litigation Counsel to McClure
during her litigation against Long Beach. After more than a decade of legal work
by Litt, McClure received a favorable jury verdict against Long Beach on August
24, 2004, and a $20 million settlement on August 22, 2006.
The attorney’s fee amount due to Litt is governed by the 1998 Amended
Plan of Reorganization approved by the bankruptcy court on January 12, 1998.
The 1998 Amended Plan of Reorganization contained the only agreement on Litt’s
attorney’s fee between the parties that was approved by the bankruptcy court.
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Such an approved plan binds the parties. 11 U.S.C.A. § 1141; see also In re
Caviata Attached Homes, LLC, 481 B.R. 34, 46 (B.A.P. 9th Cir. 2012).
McClure objects to the attorney’s fee award on several grounds, but
primarily because of Litt’s alleged malpractice during the time he represented
McClure in her lawsuit against Long Beach and during his work for McClure after
the lawsuit settled. McClure filed malpractice claims against Litt in Los Angeles
County Superior Court in July 2008. On November 25, 2009, the bankruptcy court
opted not to get involved with adjudicating those claims. Such a decision is not an
abuse of discretion when those claims have already been brought in another forum
when matters of “economy, convenience, fairness, and comity” are considered. In
re Davis, 177 B.R. 907, 913 (B.A.P. 9th Cir. 1995) (quoting In re Carraher, 971
F.2d 327, 328 (9th Cir. 1992)). We also decline to address the merits of McClure’s
malpractice claims against Litt.
McClure’s other arguments and other submitted documents fail to show that
the bankruptcy court abused its discretion in calculating the attorney’s fee owed by
McClure to Litt.1 See Kord Enters. II, 139 F.3d at 686. McClure argues the
bankruptcy court denied her sufficient discovery opportunities. A bankruptcy
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We deny Litt’s motion to strike the whole of McClure’s excerpts of record
and to impose sanctions on McClure. We grant McClure’s motion to take judicial
notice of five exhibits submitted in support of her appeal.
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court abuses its discretion in regard to discovery only if a party “diligently pursued
its previous discovery opportunities[.]” In re Thorpe Insulation Co., 671 F.3d
1011, 1024 (9th Cir. 2012) (quoting Bank of Am., NT & SA v. PENGWIN, 175 F.3d
1109, 1118 (9th Cir. 1999)). McClure failed diligently to pursue opportunities for
discovery against Litt even after the bankruptcy court made discovery available to
her. McClure raises a number of additional arguments about the attorney’s fee
award calculation, none of which is persuasive.
The bankruptcy court’s denial of McClure’s motion to reconsider the
attorney’s fee award was not an abuse of discretion. McClure’s motion to
reconsider raised no significant issues that the bankruptcy court had not earlier
considered and decided. See MGIC Indemnity Corp. v. Weisman, 803 F.2d 500,
505 (9th Cir. 1986) (upholding a bankruptcy court’s discretion to deny a motion
where no significant new information is introduced).
McClure requested that the bankruptcy court grant a rehearing on its
decision concerning Litt’s attorney’s fee award under Fed R. Civ. Pro. 59(e). After
oral argument on November 17, 2009, the bankruptcy court denied the request.
We find no fault with the bankruptcy court’s discretionary call, which the district
court affirmed. See In re Canino, 185 B.R. 584, 592 (B.A.P. 9th Cir. 1995)
(discussing the limits of the bankruptcy court’s powers when addressing issues of
4
alleged manifest injustice). The bankruptcy court’s ruling was well within the
exercise of sound discretion.
AFFIRMED.
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