Lee v. Roessler-Lobert (In Re Roessler-Lobert)
567 B.R. 560
| 9th Cir. BAP | 2017Background
- Carey Roessler-Lobert filed a pro se Chapter 7 petition on June 2, 2015; Mary Lee (personal representative for Juliana March) filed a timely adversary complaint on September 3, 2015 alleging a fraudulent transfer.
- The bankruptcy court issued a summons and a scheduling-conference order (requiring Rule 26(f) meet-and-confer, initial disclosures, and a status report) the same day; notice was sent via CM/ECF and a hard copy mailed to counsel’s listed address.
- Plaintiff’s counsel Seymour Amster failed to timely serve the summons and scheduling order, served the defendant only in mid-October, did not file a proof of service, and filed a unilateral status report late (the night before the conference).
- At the November 5 status conference Amster did not appear; a substitute attorney made a special appearance and the court dismissed the adversary proceeding for failure to prosecute and for violations of the scheduling order and local rule LBR 7016-1.
- Lee moved for reconsideration; counsel made inaccurate statements about notice and blamed a heavy death-penalty caseload. The bankruptcy court denied reconsideration, and Lee appealed the dismissal and denial of reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for failure to prosecute was proper | Amster: delay excusable; continuance would cure prejudice | Court/defendant: late service and missed deadlines justify dismissal | Reversed — dismissal was an abuse of discretion; delay was short and less drastic sanctions were available |
| Whether dismissal for violating scheduling order (Rule 16/26) was proper | Lee: violations were negligent, not willful; remedy short continuance | Court/defendant: failure to meet and confer, late status report, and untimely service frustrated process | Reversed — record showed negligence but not the level of fault (willfulness/bad faith) to warrant dismissal |
| Whether dismissal for violating local rule LBR 7016-1 was proper | Lee: counsel’s misconduct shouldn’t terminate the case; plaintiff not culpable | Court/defendant: local rule authorizes dismissal for failure to prepare status report | Reversed — three-part test (enhanced fault; five-factor analysis; proportionality) not met; sanction disproportionate |
| Whether reconsideration denial requires separate review | Lee: bankruptcy court erred in denying reconsideration | Court: denial appropriate based on facts | Not reached — reversal of dismissal moots analysis of reconsideration order |
Key Cases Cited
- Henderson v. Duncan, 779 F.2d 1421 (9th Cir.) (factors for dismissal for failure to prosecute)
- Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447 (9th Cir.) (unreasonable delay and prejudice analysis in dismissal for failure to prosecute)
- Malone v. U.S. Postal Serv., 833 F.2d 128 (9th Cir.) (standards for dismissal for violation of court orders)
- Yourish v. Cal. Amplifier, 191 F.3d 983 (9th Cir.) (deference on docket-management decisions)
- Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275 (9th Cir.) (burden-shifting on prejudice when plaintiff offers excuse for delay)
- R & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240 (9th Cir.) (enhanced-fault requirement for severe discovery sanctions)
- Zambrano v. City of Tustin, 885 F.2d 1473 (9th Cir.) (proportionality and fault standards for sanctions)
- Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178 (9th Cir.) (limits on punitive civil sanctions; sanctions must be compensatory or coercive)