Stephanie Marshall v. Richard Diamond

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JOHN JAY MARSHALL, AKA No. 15-60058
John B. Marshall,
BAP No. 15-1024
Debtor,
______________________________
MEMORANDUM*
STEPHANIE MARSHALL,
Appellant,
v.
RICHARD K. DIAMOND, Chapter 7
Trustee and RANDY SIMON,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Dunn, and Taylor, Bankruptcy Judges, Presiding
Submitted February 14, 2017**
Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and HELLERSTEIN,*** District
*
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).
Judge.
Stephanie Marshall, appellant, appeals from the Bankruptcy Appellate
Panel’s (BAP) decision that she lacked standing to appeal a bankruptcy court’s
order excluding her associate, Patrick Pittelli, from bidding at a sales auction. We
affirm the decision of the BAP.
Since the parties are familiar with the facts, we recite only so much of them
as necessary to explain our decision. Stephanie Marshall claims ownership of a
1973 Ferrarri, transferred to her by her father, John Marshall, and the rights to
receive royalties from the movie, The Exorcist. By order of the Los Angeles
Superior Court, in a lawsuit filed to enforce a judgment by a creditor of John
Marshall, Randy Simon, the Ferrarri was seized, and, by a stipulation signed by the
Marshalls, the royalties from The Exorcist were assigned to the trustee of John
Marshall’s bankrupt estate. The bankruptcy court then held an auction for the
Ferrarri, the royalties, and claims on behalf of creditors against the Marshalls.
The issue is whether at the auction, a bidder, Patrick Pittelli, could bid with
money pooled from the Marshalls. The bankruptcy court did not allow the bid,
holding that bids that included funds from the Marshalls were forbidden. The BAP
dismissed Stephanie Marshall’s appeal on the ground that she lacked standing.
***
The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
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Stephanie Marshall now appeals. We have jurisdiction pursuant to 28 U.S.C. §
158(d).
We review standing de novo as a question of law. Mayfield v. United States,
599 F.3d 964, 970 (9th Cir. 2010). To have Article III standing, a litigant must
demonstrate that:
(1) it has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.
In re Palmdale Hills Prop., LLC, 654 F.3d 868, 873 (9th Cir. 2011) (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–
81 (2000)).
Marshall fails to meet these requirements. First, the order by the bankruptcy
court to set aside Pittelli’s bid did not seize the Ferrari or royalties. That was done
by the order of the Los Angeles Superior Court and the stipulation transferring
royalties to the bankruptcy trustee. Stephanie Marshall’s injury is not “fairly
traceable” to the bankruptcy court’s order to exclude Pittelli’s bid.
Second, Marshall’s injury could not be redressed by a favorable decision of
the BAP. Marshall’s claim speculates that Pittelli will win the auction and cause
the Los Angeles Superior Court action to be dismissed, but speculation does not
satisfy the requirements of standing. See Clapper v. Amnesty Int’l USA, ––– U.S.
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–––, 133 S. Ct. 1138, 1150 n.5 (2013) (“Plaintiffs cannot rely on speculation about
the unfettered choices made by independent actors not before the court.” (internal
quotation marks omitted)).
Third, absent a showing that Pittelli lacked the ability to bring his own
appeal, Marshall does not have standing to complain about an injury to Pittelli.
See Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[E]ven when the plaintiff has
alleged injury sufficient to meet the ‘case or controversy’ requirement, this Court
has held that the plaintiff generally must assert his own legal rights and interests,
and cannot rest his claim to relief on the legal rights or interests of third parties.”);
Wasson v. Sonoma Cty. Junior Coll., 203 F.3d 659, 663 (9th Cir. 2000).
For these reasons, we affirm the BAP.
AFFIRMED.
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