In re: Carey A. Roessler-Lobert, 567 B.R. 560

Debtor Carey Roessler-Lobert filed Chapter 7; Mary Lee (personal representative of decedent) timely filed an adversary complaint to determine dischargeability.
Bankruptcy court issued a summons and a scheduling-conference order requiring service, a Rule 26(f) meet-and-confer, and a joint status report; notices were sent via CM/ECF and mail to counsel of record.
Plaintiff’s counsel, Seymour Amster, failed to timely serve the summons and scheduling order, did not file a proof of service, held a brief telephone call with the defendant four days before the conference, and filed a unilateral status report hours before the hearing.
Amster did not appear at the initial status conference; a substitute attorney made a special appearance and sought a continuance; the court found multiple violations of rules and orders and dismissed the adversary proceeding that day for failure to prosecute and rule/order violations.
Lee moved for reconsideration, citing counsel’s heavy criminal caseload and neglect; the bankruptcy court denied the motion, finding Amster had received electronic notice and exhibited a lack of diligence. Lee appealed.
The BAP reversed: although counsel’s conduct warranted sanction, dismissal at the initial status conference was a disproportionate terminating sanction and less drastic alternatives should have been considered.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal for failure to prosecute was warranted	Amster’s neglect excusable due to heavy death-penalty caseload; continuance sufficient	Court (and defendant) argued plaintiff’s failures disrupted docket and status conference	Reversed — dismissal too harsh given short delay and availability of lesser sanctions
Whether violation of the scheduling conference order justified dismissal	Failures were inadvertent and correctable; no willful misconduct by plaintiff	Court emphasized missed meet-and-confer, late status report, and late service undermined order	Reversed — record showed negligence, not bad faith or flagrant violation requiring termination
Whether noncompliance with local rule LBR 7016‑1 justified terminating sanction	Counsel’s delay did not amount to gross negligence or willfulness; sanction disproportionate	Court relied on local-rule sanction authority permitting dismissal for failures	Reversed — three-part test (enhanced fault, five-factor balancing, proportionality) not satisfied
Whether reconsideration denial stands	Reconsideration unnecessary because dismissal was improper	Bankruptcy court asserted electronic notice and counsel’s misconduct	Not addressed further after reversal of dismissal; BAP declined to reach merits of reconsideration order

Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986) (sets five‑factor test for dismissal for failure to prosecute)
Malone v. U.S. Postal Serv., 833 F.2d 128 (9th Cir. 1987) (standards for dismissal for violation of court orders and sanctions)
Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447 (9th Cir. 1994) (dismissal for prolonged inaction; delay and prejudice analysis)
United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc) (abuse‑of‑discretion review framework)
R & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240 (9th Cir. 2012) (enhanced fault required for severe sanctions for discovery/local‑rule violations)
Zambrano v. City of Tustin, 885 F.2d 1473 (9th Cir. 1989) (requires finding of recklessness or willfulness for dismissal under local‑rule violations)
Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178 (9th Cir. 2003) (bankruptcy courts limited to compensatory/coercive civil penalties; punitive restrictions)