In re Babak Kazemi Shirazi
INTRODUCTION
Seyed Jafar Jafari appeals the bankruptcy court‘s order dismissing with prejudice his adversary complaint against chapter 71 debtor, Babak Kazemi Shirazi, which sought to establish a nondischargeable claim under
The bankruptcy court correctly applied the law, and Jafari does not demonstrate an abuse of discretion. Accordingly, we AFFIRM.
FACTS2
A. The adversary proceeding
Shirazi filed a chapter 7 petition in April 2023. Jafari filed an adversary complaint under
The bankruptcy court approved a stipulation which set a discovery deadline for December 1, 2024, a deadline to file the joint pre-trial stipulation (“JPTS“) by December 26, 2024, and a pretrial conference for January 9, 2025.
Neither party appeared for the pre-trial conference, and neither party filed anything prior to the hearing. The bankruptcy court continued the pretrial conference and issued an order to show cause (the “First OSC“)
About an hour before the continued pretrial conference, Jafari filed the JPTS and a declaration from Nassif explaining that he again miscalendared the hearing and did not realize he was required to file the JPTS.
At the continued pretrial conference, the court reviewed the JPTS and rejected the parties’ contention that they needed to conduct more depositions. The court directed Nassif to amend the JPTS in the manner discussed at the hearing, and it set a trial for July 31, 2025. The court approved the amended JPTS on June 26, 2025.
Three weeks before trial, Jafari filed a motion to modify the order approving the JPTS, and a week later he filed a “Unilateral Modified Pretrial Statement” which purported to modify the court-approved JPTS by adding six new witnesses and twenty-seven new exhibits. Jafari also sought to change several disputed facts and add back the provision that “depositions still need to be taken,” which the court expressly rejected when it approved the JPTS.
At the hearing on Jafari‘s motion to modify, the court confirmed that Jafari had not previously disclosed any of the exhibits or witnesses he
The bankruptcy court entered a new scheduling order setting the following deadlines: (1) July 30, 2025, for disclosure of expert witnesses and reports; (2) October 30, 2025, for completion of discovery; (3) September 15, 2025, for Jafari to file a unified statement of objections after meeting and conferring regarding objections to evidence; and (4) November 20, 2025, for Jafari to file the new JPTS. The court also set a pretrial conference for December 11, 2025, at which time it would set the new trial date. In the scheduling order, the court ordered:
If Plaintiff fails to comply with the deadlines or requirements set forth herein, Defendant shall have the right to move this Court for dismissal of the action, with prejudice, on the grounds of Plaintiff‘s failure to prosecute. If Plaintiff misses one more deadline, Plaintiff is cautioned that this Court will dismiss this action.
If any party fails to comply with any provision contained herein, or as set forth in the local rules and this Court‘s procedures . . . , the offending party may be subject to monetary and/or nonmonetary sanctions.
On August 21, 2025, Jafari filed a notice of association of counsel, indicating that attorney Evan Frank would appear as co-counsel for Jafari. Ten days later, Jafari filed a Substitution of Attorney, replacing Nassif with Frank as his attorney of record.
B. The motion to dismiss
On September 17, 2025, Sharazi filed a motion to dismiss the adversary complaint. He noted three new deadlines missed by Jafari. First, Jafari‘s attorneys did not respond to nine separate attempts to meet and confer regarding disclosures, discovery, and objections to exhibits.3 Second,
Shirazi argued that dismissal for lack of prosecution was warranted because of Jafari‘s continued pattern of delay and his blatant disregard for the court‘s scheduling order which included a warning that failure to comply with deadlines could result in dismissal. Shirazi provided notice of the hearing on the motion to dismiss, set for November 12, 2025, which required written responses to be filed fourteen days prior to the hearing.
On October 1, 2025, Jafari filed a motion to withdraw deemed admissions, and a declaration from Nassif stating that he had been experiencing health issues and had mis-calendared the deadline for responses to the requests for admission. Jafari noticed a hearing on the motion to withdraw admission for November 4, 2025, and Shirazi filed an opposition.
Jafari did not file an opposition to the motion to dismiss until January 5, 2026, nearly two months after the deadline. He argued that Shirazi did not serve his attorney Frank with the motion, despite having notice that Frank was substituted for Nassif as Jafari‘s attorney of record. Jafari maintained that Shirazi‘s attorney‘s meet-and-confer attempts were merely efforts to harass and overwhelm Nassif, and he argued that Nassif had responded to several of the letters. Jafari argued the deemed admissions should not be considered for purposes of dismissal as argued in his motion to withdraw the admissions.
Jafari also filed a declaration from Nassif, explaining his health issues and stating his view that Shirazi sought to harass and overwhelm him with nine meet-and-confer letters over twenty-eight days. Nassif said he did not
C. The court‘s ruling
On January 20, 2026, the bankruptcy court vacated the hearing and dismissed the adversary proceeding with prejudice. The court noted that its decision did not turn on a single missed deadline or procedural lapse, but on “a sustained pattern of noncompliance with Court-ordered obligations that materially impeded the orderly progression of this adversary proceeding.” The court considered Nassif‘s health circumstances, but concluded that when compliance is not possible, it is incumbent upon the litigant to seek relief. Neither Nassif nor Frank made any request to extend, modify, or otherwise obtain relief from the court‘s scheduling order.
The bankruptcy court applied the factors set forth in Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (the ”Malone factors“), and held that four of the five factors—the public interest in expeditious resolution, the court‘s need to manage its docket, the risk of prejudice to defendant, and the availability of lesser sanctions—weighed in favor of dismissal while only the public policy favoring disposition on the merits weighed against dismissal. It reasoned that its two prior OSCs and its July 2025 scheduling order clearly warned that dismissal could result if Jafari failed to comply with his obligations, yet he failed to participate in the
The court considered less drastic alternatives to dismissal but determined that, in light of repeated warnings and prior court intervention to address noncompliance, lesser alternatives would not ensure future compliance or advance timely resolution of the case. The court entered an order dismissing the adversary proceeding with prejudice, and Jafari appealed.
JURISDICTION
The bankruptcy court had jurisdiction under
ISSUES
Did Shirazi‘s failure to serve attorney Frank with the motion to dismiss deprive Jafari of due process?
Did the bankruptcy court abuse its discretion by dismissing the adversary proceeding with prejudice?
STANDARDS OF REVIEW
“Whether a person‘s due process rights have been violated is a mixed question of law and fact, which is reviewed de novo.” Hasso v. Mozsgai (In re La Sierra Fin. Servs., Inc.), 290 B.R. 718, 726 (9th Cir. BAP 2002) (citing
We review for abuse of discretion the bankruptcy court‘s dismissal of an adversary proceeding based on a plaintiff‘s failure to prosecute or to comply with rules or a court order. Lee v. Roessler-Lobert (In re Roessler-Lobert), 567 B.R. 560, 567 (9th Cir. BAP 2017) (citations omitted).
A bankruptcy court abuses its discretion if it applies an incorrect legal standard or its factual findings are illogical, implausible, or without support in the record. TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011). “[W]e will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions.” In re Roessler-Lobert, 567 B.R. at 567 (quoting Malone, 833 F.2d at 130).
DISCUSSION
Jafari argues the court erred by dismissing the case because Shirazi did not properly serve the motion to dismiss, and the court abused its discretion in weighing the Malone factors. He maintains that the delays were caused by both parties, and were not the product of willfulness, bad faith, or fault by Jafari. He disputes the court‘s finding of prejudice to Shirazi, and he argues the court did not meaningfully consider lesser alternatives or the relative fault of the parties.
The bankruptcy court dismissed the adversary proceeding pursuant to
Whether the bankruptcy court dismisses for lack of prosecution, or for failure to obey a court order, it must consider the same five factors: (1) the public‘s interest in expeditious resolution of litigation; (2) the court‘s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. See In re Roessler-Lobert, 567 B.R. at 568; 572 (citing Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) and Malone, 833 F.2d at 130). Additionally, dismissal for lack of prosecution “must be supported by a showing of unreasonable delay.” Henderson, 779 F.2d at 1423.
The five-factor test is a “balancing test.” Adriana Int‘l Corp. v. Thoeren, 913 F.2d 1406, 1413 (9th Cir. 1990). “We may affirm a dismissal where at least four factors support dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)).
Pursuant to
Regardless of whether Frank was properly served, he and Jafari had actual notice of the motion to dismiss by at least October 28, 2025, when the
Jafari had sufficient notice of the motion to dismiss to satisfy due process, and any service problem was caused by his attorneys’ failure to ensure the newly substituted Frank would receive electronic notice. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (holding that due process requires notice “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.“).
Moreover, an alleged due process violation cannot constitute reversible error unless the party asserting the violation can demonstrate prejudice. See Rosson v. Fitzgerald (In re Rosson), 545 F.3d 764, 776-77 (9th Cir. 2008), partially abrogated on other grounds as recognized by Nichols v. Marana Stockyard & Livestock Mkt., Inc. (In re Nichols), 10 F.4th 956, 962 (9th Cir. 2021). Here, the bankruptcy court did not dismiss the case merely because Jafari filed an untimely response to the motion to dismiss. It found a pattern of delay and noncompliance with court orders. Even if Frank was not properly served, he did not meet and confer with Shirazi‘s counsel, and he did not file the unified statement of objections, which was due by
We find no error in the court‘s decision to rule on the motion to dismiss, notwithstanding Jafari‘s claim that he was not properly served.
C. The bankruptcy court did not abuse its discretion by dismissing the adversary proceeding.
Jafari does not contest the bankruptcy court‘s use of the Malone factors, which we agree is the correct legal standard for determining whether to dismiss the case under
Jafari also argues that the fourth Malone factor—the public policy favoring resolution on the merits—weighs against dismissal, but this is consistent with what the bankruptcy court found. The fourth factor will almost always weigh against case-dispositive sanctions. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). The first two Malone factors, which Jafari does not dispute, virtually always weigh in favor of dismissal where violations cause delays which could result in a need to reschedule the trial. See id. (“The public‘s interest in expeditious resolution of litigation always favors dismissal . . . The trial judge is in the best position to determine
1. Risk of prejudice to Shirazi
Mere delay is insufficient to prejudice Shirazi. See Wanderer, 910 F.2d at 656 (“Delay alone, without a focus on its effects, will not justify dismissal or default.“). In determining the risk of prejudice, we must consider whether Jafari‘s actions impaired the parties’ ability to go to trial or threatened to interfere with the rightful decision of the case. See Adriana Int‘l Corp., 913 F.2d at 1412; Moneymaker v. Coben (In re Eisen), 31 F.3d 1447, 1453 (9th Cir. 1994). We evaluate the risk of prejudice to Shirazi with reference to the reasonableness of Jafari‘s excuse for the delay. See Malone, 833 F.2d at 131. Ultimately, the risk of prejudice must be considered in conjunction with whether less drastic alternatives would likely result in completion of discovery obligations and a decision on the merits. See Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1097 (9th Cir. 2007) (“What is most critical for case-dispositive sanctions, regarding risk of prejudice and of less drastic sanctions, is whether the discovery violations threaten to interfere with the rightful decision of the case.“) (citation modified).
Here, the bankruptcy court reasoned that Jafari‘s failure to participate in the meet-and-confer process precluded the filing of the unified statement of objections and materially undermined the court‘s trial schedule. Jafari‘s excuse for noncompliance was unreasonable. In his response to the motion to dismiss, Jafari simply claimed that the meet-and-confer letters from Shirazi‘s counsel were an attempt to harass and overwhelm his prior attorney, and the issues must have been unimportant because Shirazi‘s counsel did not follow up with a phone call or file any other motion (beside the motion to dismiss) to address the issues. Jafari offered no explanation for his failure to timely respond to the motion to dismiss or seek other relief, despite having actual notice. And he did not explain why he failed to comply with the court‘s order to timely file the unified statement of objections or the JPTS.
Jafari offered no excuse for the pattern of delay and noncompliance other than to suggest both parties were to blame. He maintains that his prior attorney was suffering with health issues, but he does not explain why his prior counsel‘s health would impede his new attorney‘s ability to meet deadlines. And the record indicates that his prior counsel “miscalendared” at least three separate hearings or deadlines (the January 2025
Given the unreasonableness of Jafari‘s excuses and the persistence of his noncompliance and delay, we find no error in the court‘s finding of risk of prejudice to Shirazi.
2. Consideration of less drastic alternatives
The fifth Malone factor requires the court to consider less drastic alternatives to dismissal. The bankruptcy court “need not exhaust every sanction short of dismissal before finally dismissing a case, but must explore possible and meaningful alternatives.” Henderson, 779 F.2d at 1424. The availability of less drastic sanctions has three sub-parts: “whether the court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of case-dispositive sanctions.” Conn. Gen. Life Ins. Co., 482 F.3d at 1096. “[P]roviding a plaintiff with a second or third chance following a procedural default is a ‘lenient sanction,’ which, when met with further default, may justify imposition of the ultimate sanction of dismissal with prejudice.” Malone, 833 F.2d at 132 n.1 (citation modified).
Jafari argues that the court could have imposed monetary sanctions, ordered prompt compliance with discovery, or set a firm trial-management deadline instead of dismissing the proceeding. But the bankruptcy court
Because of Jafari‘s persistent delays and failures to comply with court-ordered deadlines, the bankruptcy court was justified in concluding that less drastic sanctions were not likely to ensure future compliance or advance timely resolution of the case. See Valley Eng‘rs Inc. v. Elec. Eng‘g Co., 158 F.3d 1051, 1057 (9th Cir. 1998) (“Dismissal is appropriate where a ‘pattern of deception and discovery abuse made it impossible’ for the district court to conduct a trial ‘with any reasonable assurance that the truth would be available.‘” (quoting Anheuser-Busch, Inc. v. Nat. Beverage Distribs., 69 F.3d 337, 352 (9th Cir. 1995))).
Jafari has not demonstrated that the court‘s factual findings were clearly erroneous, and we discern no abuse of discretion in the court‘s application of the Malone factors or in its decision to dismiss the adversary proceeding.
CONCLUSION
Based on the foregoing, we AFFIRM the bankruptcy court‘s order dismissing with prejudice the adversary proceeding.