Shellie Halper v. Solomon Cohen

FILED
NOT FOR PUBLICATION
NOV 12 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: SHELLIE MELISSA HALPER, No. 18-60020
Debtor, BAP No. 17-1172
______________________________
SHELLIE MELISSA HALPER, MEMORANDUM*
Appellant,
v.
SOLOMON M. COHEN,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Taylor, Faris, and Spraker, Bankruptcy Judges, Presiding
Submitted November 6, 2019**
Pasadena, California
Before: SCHROEDER, FRIEDLAND, and R. NELSON, 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).
Defendant-Appellant Shellie Halper appeals a decision of the Bankruptcy
Appellate Panel (“BAP”) affirming the Bankruptcy Court’s entry of default
judgment in favor of Plaintiff-Appellee Solomon Cohen. We have jurisdiction
under 28 U.S.C. § 158(d)(1) and we affirm. We review the grant of terminating
sanctions and the entry of default judgment for abuse of discretion. Conn. Gen.
Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007);
Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1391 (9th Cir.1989).
Halper contends the Bankruptcy Court erred in issuing terminating sanctions
without considering the appropriate factors. See Conn. Gen. Life Ins. Co., 482 F.3d
at 1096. She is not correct. After months of warnings from the Bankruptcy Court
regarding Halper’s failure to comply with court orders regarding her discovery
abuses and considering all other relevant circumstances, the Bankruptcy Court first
issued a lesser sanction, requiring Halper to pay some of Cohen’s fees incurred as a
result of her delay. The Bankruptcy Court explained that if she failed to pay this
initial sanction, it would grant terminating sanctions. Halper acknowledged this. It
was only after Halper did not comply with this initial sanction that the Bankruptcy
Court granted terminating sanctions. Given the lengths the Bankruptcy Court went
to before granting terminating sanctions, we hold that there was no abuse of
discretion. Id.2
Nor did the Bankruptcy Court abuse its discretion in awarding default
judgment. In reviewing a default judgment, we must take the well-pleaded factual
allegations of the complaint as true. Cripps v. Life Ins. Co. of N. Am., 980 F.2d
1261, 1267 (9th Cir. 1992). Here, the well-pleaded factual allegations of Cohen’s
complaint show that each of the elements of 11 U.S.C. § 523(a)(2)(A) was met,
and, indeed, Halper did not attempt to challenge the allegations or the evidence.
The Bankruptcy Court did not abuse its discretion by granting default judgment.
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
We also reject Halper’s contention that the Bankruptcy Court’s damages
award was excessive. Cohen’s complaint sought a base amount of damages, as
well as interest, penalties, and reasonable attorneys’ fees. At the default judgment
hearing, which Halper attended, he submitted supplemental declarations carefully
calculating the amount of damages, which Halper had the opportunity to oppose,
but did not. We hold that there was no error in the Bankruptcy Court’s award of
damages.
AFFIRMED.
3