In rе BEACHPORT ENTERTAINMENT, Debtor, Howard M. Ehrenberg, Chapter 7, Trustee, Appellant, v. California State University, Fullerton Foundation, a Non-Profit corporation, Appellee.
No. 03-55251
United States Court of Appeals, Ninth Circuit
Argued and Submitted Nov. 2, 2004. Filed Feb. 3, 2005.
396 F.3d 1083
III
We conclude that the district court did not err in holding that Charley was not in custody when Sergeant Billie detained her at the Begay rеsidence and brought her to her own home to investigate what had happened to her children. We also hold that the district court did not err in denying Charley‘s motion to suppress her statements to Agent Purscell because Charley‘s right to counsel was not violated.
AFFIRMED.
a degree оf cooperation so extensive between federal and tribal authorities that one could not separate the federal and tribal proceedings:
[A]s a result of the way that tribal and federal authorities cooperated in connection with these chаrges, Red Bird‘s indictment in tribal court inherently led to his prosecution in federal court. Considering the close working relationship between tribal and federal authorities in this case, to deny Red Bird the right to counsel after the tribal indictment would deprive him of an attorney at one of thе most critical stages of the proceedings against him.
Id. at 714. This case presents no such circumstances: Absent the collusive behavior in Bird, our precedent that the “Sixth Amendment right to counsel does not apply in tribal court criminal proceedings,” Percy, 250 F.3d at 725, stands. We have no occasion to decide whether, in factual circumstances like those in Bird, we would reach the result reached in Bird.
Before: TASHIMA, FISHER, and TALLMAN, Circuit Judges.
TASHIMA, Circuit Judge:
Howard Ehrenberg, the Chapter 7 trustee (“Trustee“), appeals a decision of the Bankruptcy Appellate Panel (“BAP“), dismissing his appeal from an order of the bankruptcy court granting summary judgment in favor of the California State University, Fullerton Foundation (“Foundation“). The Trustee had brought an adversary proceeding in the bankruptcy court seeking to avoid an allegedly fraudulent transfer made by debtor Beachport Entertainment (“Debtor“) to the Foundation. The BAP dismissed the Trustee‘s appeal for failure to provide the BAP with the judgment or the order being appealed, the complaint, and the answer, in violation of
BACKGROUND
The Foundation was established to provide administrative and support services1 for contracts entered into between California State University, Fullerton (“University“), and third parties. In January 1998, the University entered into a contract with Debtor, granting Debtor the right to conduct events in the University Sports Complex. In exchange, Debtor was to place $1,000,000 in an escrow account, to be used by the University to make improvements to the Sports Complex.
When the University received the first payment of $500,000 from Debtor, it delivered the funds to the Foundation, which, in turn, began making plans to begin the improvements. Debtor made the second payment of $500,000 directly to the Foundation, apparеntly in March 1998. The second payment is the one at issue in this case.
Debtor filed a petition under Chapter 7 of the Bankruptcy Code in August 1999. In August 2001, the Trustee initiated an adversary proceeding against the Foundation in bankruptcy court, seeking to avoid the second $500,000 payment as а fraudulent transfer. The Foundation filed a motion for summary judgment, contending that the suit was barred by the Eleventh Amendment because the Foundation is an instrumentality of the State of California. The Foundation further contended that the Trustee‘s avoidance action was time-barred pursuаnt to
The Trustee appealed the order to the BAP. The Trustee‘s notice of apрeal was filed on May 20, 2002.
On July 10, 2002, the Foundation moved to dismiss the appeal for failure to prosecute, pursuant to Bankruptcy Rules 8001 and 8006.2 The Foundation argued that the Trustee did not filе his designation of record and statement of issues until June 26, 2002, a week after the deadline set by the court, and that the Trustee had failed to serve the documents on the Foundation.
The BAP denied the motion to dismiss on July 30, 2002, stating that the Trustee had filed the designation of record and the statеment of issues and that the record was now complete. It reasoned that the Foundation had not been prejudiced by the Trustee‘s delay in completing the record on appeal.
Oral argument before the BAP was held on November 20, 2002. Both parties argued the merits of the case, and there was no indication that the BAP was unfamiliar with any aspects of the case. Following oral argument, the BAP issued a decision in which it noted that neither the Trustee nor the Foundation included in its excerpts of record on appeal a copy оf the order appealed from, although both parties stated that the Foundation‘s motion had been granted. The BAP thus framed the issue as whether the appeal should be dismissed for failure to comply with
STANDARD OF REVIEW
Generally, “[d]ecisions of the BAP generally are reviewed de novo.” Carrillo v. Su (In re Su), 290 F.3d 1140, 1142 (9th Cir.2002). However, “the BAP‘s imposition of sanctions for non-compliance
DISCUSSION
In determining whethеr to dismiss summarily an appeal for non-compliance with a procedural rule, the BAP must consider the impact of the sanction, alternative sanctions, and “the relative culpability of the appellant and his attorney, because dismissal may inappropriаtely punish the appellant for the neglect of his counsel.” In re Donovan, 871 F.2d at 808; see also In re Morrissey, 349 F.3d at 1190 (stating that “the selection of the sanction to be imposed must take into consideration the impact of the sanction and the alternatives available to achieve assessment of the penalties in conformity with fault‘“) (quoting Myers v. Shekter (In re Hill), 775 F.2d 1385, 1387 (9th Cir.1985) (per curiam)). Although summary dismissal is within the BAP‘s discretion, it “should first consider whether informed review is possible in light of what record has been provided.” Kyle v. Dye (In re Kyle), 317 B.R. 390, 393 (B.A.P. 9th Cir. 2004).
The failure to take into consideration “the impact of the sanction and the alternatives available to аchieve assessment of the penalties in conformity with fault” constitutes an abuse of discretion. In re Hill, 775 F.2d at 1387. Where the procedural violations have been egregious, however, we have not required an explicit discussion of alternative sanctions. See Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1454-55 (9th Cir.1994) (stating that “[w]e have ‘never held that explicit discussion of alternatives is necessary for an order of dismissal to be upheld’ “) (quoting Malone v. United States Postal Serv., 833 F.2d 128, 132 (9th Cir.1987)); Fitzsimmons v. Nolden (In re Fitzsimmons), 920 F.2d 1468, 1472 (9th Cir.1990) (stating that, “in egregious circumstances such as these, not even consideration of alternative sanctions is necessary before dismissal“).
In In re Morrissey, for example, the appellant‘s brief to the BAP “egregiously violated the requirements of
Here, however, the BAP appeared to be missing only the Foundation‘s answer to the cоmplaint and the bankruptcy court order.4 The Trustee and the Foundation included in their excerpts of record all of the declarations included in the record on appeal to this court and also included the memoranda in support of the motion for summary judgment аnd the Foundation‘s statement of uncontroverted facts. Thus, unlike In re Morrissey, in which “the inadequacy of the record and the briefing afforded the BAP little choice but to affirm summarily,” the record before the BAP appears to include everything needed in order to address the merits of the aрpeal. Id. at 1191.
Although we sympathize with the BAP‘s frustration and we recognize the necessity of complying with procedural rules, in this instance, the sanction of summary dismissal was inappropriately harsh in relation to the harm that was actually caused. The failure to comply with proсedural rules places an added burden on the court and on opposing counsel. In no way do we condone the conduct of the Trustee‘s counsel. Nonetheless, the record before us does not persuade us that dismissal was warranted. The transcript of orаl argument before the BAP indicates that the BAP was concerned only with the merits of the case. There is no indication that the BAP was unfamiliar with the facts of the case or the legal issues involved. After oral argument on the merits, the BAP submitted the appeal for decision. Moreover, the BAP gave no prior indication that it considered the record to be deficient, and the Trustee was given no opportunity to argue why dismissal was too harsh a sanction. When the BAP had earlier denied the Foundation‘s motion to dismiss the appeal for failure to prosecute, the court stated that the record was complete and that the Foundation had not been prejudiced by the Trustee‘s delay in completing the record.
Summary dismissal in this situation does not further the goal of “the swift and efficient resolution of disputes pertaining to thе distribution of the bankruptcy estate.” Zer-Ilan v. Frankford (In re CPDC Inc.), 221 F.3d 693, 700 (5th Cir. 2000). We therefore conclude that the BAP‘s summary dismissal of the appeal without considering alternative sanctions constitutes an abuse of discretion, and we remand for reconsideration “in the light of possible effective sanctions alternative to dismissal.” In re Hill, 775 F.2d at 1387; see also In re Donovan, 871 F.2d at 809 (vacating and remanding “for consideration of alternative sanctions and relative fault“). Each party shall bear his or its own costs on appeal.
REVERSED and REMANDED.
A. WALLACE TASHIMA
UNITED STATES CIRCUIT JUDGE