Desert Ranch Management LLC v. Glasser (In Re Yellowstone Mountain Club, LLC) , 646 F. App'x 558 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 28 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: YELLOWSTONE MOUNTAIN No. 14-35697
CLUB, LLC,
D.C. No. 2:14-cv-00002-DWM
Debtor,
MEMORANDUM*
DESERT RANCH MANAGEMENT
LLC; TIMOTHY L. BLIXSETH,
Plaintiffs - Appellants,
v.
BRIAN A. GLASSER, Successor Trustee
of The Yellowstone Club Liquidating
Trust,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Senior District Judge, Presiding
Argued and Submitted February 25, 2016
Pasadena, California
Before: KOZINSKI, PAEZ, and BERZON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Timothy L. Blixseth (“Blixseth”), Desert Ranch LLLP, and Desert Ranch
Management, LLC (“Desert Ranch”) appeal the district court’s order affirming the
bankruptcy court’s grant of a preliminary injunction. The bankruptcy court
enjoined Blixseth and Desert Ranch from “spending, transferring, concealing,
dissipating, disposing, assigning, hypothecating and/or encumbering any of their
assets in an amount or of a value that exceeds $5,000.00 without prior Court
approval” until the litigation in Adversary Proceeding No. 10-00015 was resolved
or the judgment in Adversary Proceeding No. 09-00014 was fully satisfied or
bonded. We affirm.
The bankruptcy court correctly concluded that the plaintiff in the adversary
proceeding, Brian A. Glasser, was entitled to a preliminary injunction because he
demonstrated a strong likelihood of success on the merits, likelihood of irreparable
harm, a balance of equities that tipped in Glasser’s favor, and that an injunction
would advance the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008).
We reject Blixseth’s argument that the bankruptcy court lacked
constitutional authority to issue the preliminary injunction. Title 11 authorizes
bankruptcy courts to issue any order “that is necessary or appropriate to carry out
the provisions of” the bankruptcy code, 11 U.S.C. § 105(a), including preliminary
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injunctions. In Stern v. Marshall, the Supreme Court held that bankruptcy courts
“lack[] the constitutional authority to enter a final judgment on a state law
counterclaim.” 131 S. Ct. 2594, 2620 (2011) (emphasis added). Here, however,
the bankruptcy court issued a preliminary injunction, not a final judgment.
AFFIRMED.
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