*1 complaint prejudice.” to include a claim for would cause undue 866 F.2d at amend the tribal, individual, (internal omitted); opposed quotations title. The as see also original petition Queen in this filed their Diego Shoshone v. Ma M/V American San They in December of 1986. then twice 1483, case Corp., rine 708 F.2d Construction complaint, filed a mo- amended their and (9th Cir.1983) (denial of motion to summary tion for October upheld allegations amend where new based delayed action on 1987. The district court moving party already on facts would knew pending ruling this circuit’s the motion totally alter basis of action and necessitate decided, After Dann was the State Dann. here, discovery). Similarly additional of Nevada filed a cross-motion for sum- evidentiary major introduction of a new mary judgment. response, In the Sho- stage litigation issue such a late permission shone moved for to amend the require discovery. will extensive additional complaint. judge implicitly The district de- addition, subjected Nevada has been granted to amend he nied leave when injunction during the entire course of government’s summary judg- motion for litigation. lapse of time caused Agostino Packing ment. v. Ellamar briefing, discovery, argu additional 576, Co., (9th Cir.1951)(denial ment, Nevada, prejudice further will be implied by of a motion is an order inconsist- game cause Nevada’s fish and law will motion). ent with the abeyance by continue to be held in litiga injunction review denial of a motion to district court’s while this amend for abuse of discretion. tion continues. Ascon Co., Properties, Inc. v. Mobil Oil Finally, factor five involved because Where the dis already the Shoshone have amended their judge express trict offers no reasons for complaint two times. dismissing complaint without leave to case, light of the circumstances of the amend, propriety we should evaluate the judge’s the district denial of leave to file a appellant’s by looking motion at five complaint third amended was not an abuse faith; “(1) (2) (3) delay; factors: bad undue of discretion. (4) prejudice opposing party; futility amendment; (5) AFFIRMED. plaintiff whether previously complaint.” amended its of these Several factors dis- judge’s
trict denial of the leave to amend. implicated
The second factor is because to amend the filed
motion
years
litigation
two and a half
after the
BUCKNUM,
In re Daniel R.
commenced,
appears
and there
Bucknum,
dba
Levine &
delay.
justification for the
The issue of
Smith, Debtor.
aboriginal title was raised in the
individual
MOODY,
H.
Joe W.
Bernice
litigation
early
Dann
as
see Unit-
Moody, Appellants,
Dann,
39, 50,
v.
470 U.S.
ed States
(1985),
continued new with possibility discovery, additional *2 WALLACE, Judge,
Before Chief RYMER, Circuit O’SCANNLAIN Judges.
PER CURIAM:
us is whether
before
judi-
properly scheduled
are a
Moodys, who
Chapter 7
in this
lienholder
cial
notice of the
received
proceeding,
com-
nondischargeability
deadline for
at risk for
put them
sufficient to
The Bank-
that deadline.
failing to meet
(“BAP”)
Panel
affirmed
ruptcy Appellate
dismissal of
bankruptcy court’s
it
that was
complaint
grounds
Bucknum, 105
re
not
filed. See In
(Bankr. 9th
B.R. 25
and we affirm.
appeal,
now
dispute.
facts are
The relevant
judg-
state
Moodys obtained a
against
prosecution
for malicious
ment
attorney,
Bucknum,
is an
who
$746,802.52.
March
On
amount
Chapter
voluntarily filed a
1988, Bucknum
Moodys as
properly listed
petition and
thereafter, in
Shortly
creditor.
early April
copy of the
counsel obtained
ensure that
“to
in order
file
sched-
debt was
MOODY’S [sic]
and address
uled,
their name
and that
...,
so that
properly scheduled
receiv-
assured
could be
MOODY’S[sic]
bankruptcy pro-
ing proper
Bradford,
M.
Declaration
ceedings.”
Record,
re
Attorney of
Plaintiffs’
(Bankr.C.D.Cal.
Bucknum, No. 88-01954
12,1988, the bank-
8,1988).
April
On
Nov.
setting the
order
court entered
May
for
meeting of creditors
filing a
for
setting the deadline
nondischargeability
523(c)
U.S.C.
1988. See
July
plaint for
Cal.,
Creek,
Bradford, Walnut
Meredith
523(c)
341(a),
§§
appellants.
point that
this
It was at
Corp.,
Jr., Pagter Law
Pagter,
R. Gibson
Bankruptcy Rule
began.
troubles
Cal.,
appellee.
Ana,
Santa
provides:
dis-
to determine
pursuant
any debt
chargeability
Price,
of the Code shall be filed
line under In re
that notice of the bar date had indeed been explained BAP has in a similar case: Moodys. sent to the Where the bankruptcy court record court dismissed the com- shows a certificate of mailing and a com- plaint. The court reasoned that if plaining party even the submits an affidavit de- proper had claring received, not received notice—a notice was not unproven— contention that the court found weight of the evidence favors the court’s did have actual party permitted certificate. bankruptcy proceedings, which constituted presumption receipt defeat the of no- sufficient resulting dead- tice from the certificate of mail- mailing, certificate of we need contrary, from the simple affidavit ing by a argument that address their second dates bar of deadlines the scheme bankruptcy proceedings knowledge of the come Bankruptcy Code would under require- reason, insufficient to the notice allegation is For this unraveled. not, by as a matter of law. ment does notice was received proper itself, presumption rebut C Properties, re American
notice.
(Bankr.D.Kan.1983).
247, 250
[B.R.]
request
damages
and ex-
Appellee’s
denied;
Ricketts,
B.R.
traordinary
Rule 38 is
costs under
against appel-
ordinary costs shall
taxed
Fed.
pursuant
to Rule 39. See
lants
addressed,
Mail
*4
38, 39(a).
R.App.P.
into the mails
stamped
deposited
by the address
to
received
presumed
AFFIRMED.
at
30
Properties,
ee. American
[B.R.]
stating that
mailing
A certificate of
O’SCANNLAIN,
Judge,
Circuit
to all
was sent
dates
of the bar
notice
concurring:
mailing,
of
proof of a
creditors or
custom
in
wholeheartedly
the court’s
I concur
that notices
presumption
the
raises
I, II-A, and
of
and in
II-C
Parts
received.
and therefore
properly mailed
However,
neither
opinion.
because
the
can
be over
presumption
The
expressly
BAP
bankruptcy court nor
convincing evidence
by clear and
come
Moodys’failure to
holding
rested its
on
not,
fact,
in
accom
mailing
was
I
receipt,
be-
presumption
overcome
—
Garner,
Grogan v.
plished.
[Cf.
address the further
that we should
lieve
U.S. —,
112 L.Ed.2d
111 S.Ct.
parties
have devot-
—to
(“the
proof
(1991)
standard
755
complete attention —of whether
almost
ed
in 11
exceptions
dischargeability
[listed]
knowledge of the bank-
Moodys’ actual
523(a)
ordinary prepon
is the
U.S.C. §
put them at risk for
ruptcy sufficed to
standard”).]
derance-of-the-evidence
I
filing deadline. would
failing to meet the
has not overcome
Appellant
...
question in the affirmative.
answer
presumption.
J., concurring).1 A
(Jones,
I
498-99
Id. at
mailing
present
was
certificate
Moodys did
assuming
Even
In re Buck
bankruptcy file.
Bucknum
arguments
their
still
receive
Cir.1989).
num,
27
9th
105 B.R.
court and the BAP
Both this
must fail.
presump
a
that this created
The
held
BAP
that a creditor’s actu-
previously
have
Moodys
notice that
receipt of
tion of
bankruptcy does
al
of debtor’s
agree.
Id. We
to overcome.
failed
put that creditor
notice
indeed suffice
nondischarge-
filing deadline
B
II,
See,
Price
871
complaint.
e.g.,
ability
497;
Ricketts,
Price
99;
B.R. at
80
F.2d at
to over-
Moodys’ failure
light of the
891-93; Rhodes,
at
61 B.R.
I, 79 B.R. at
arises
receipt that
presumption
come
grant
additional
has no discretion
argue
that dismissal
Moodys appear to
1. The
discovery
an un-
order to
premature that it de-
so
time for
was
their
to look for
opportunity even
The claimant
extension.
prived them
motion
convincing
(or
law
that the
evidence”
the “clear
to his motion
therefore attach
should
to rebut the
requires
dismiss)
have in order
them to
now
presumption
motion to
opposition to the debtor’s
argu-
receipt.
reject this
support.
"Evi-
evidence he
whatever
well settled
It is
ment.
testimony
of-
of a clerk’s
might include
dence
grant an
discretion to
has no
proof
or
was not sent
employee that
fice
deadline
for an extension of
motion
no-
received
that none
listed
523(c). See Fed.R.Bankr.P.
under
4007(c);
J.,
(Jones,
Ricketts, B.R. at 498-99
See
80
tice.”
concurring).
486-87;
I,
Hill,
Price
F.2d at
Moodys
no such
have offered
Rhodes,
890;
61 B.R.
In re
B.R.
(Bankr.
here.
evidence
a fortiori that
It follows
630;
Alton,
re
64 B.R.
see also In
claimant in
permit-
Price was not
(Bankr.M.D.Fla.1986), aff'd,
1
Meyers on the one hand and Price I and
appeal
this
on the other concerns the rea-
First,
contentions,
despite
notice,
son
the creditor’s lack of
not his
Price I did not base its
on a distinc
status as a scheduled or unscheduled credi-
tion
scheduled and
between
unscheduled
tor.
partially
When lack of notice is
attrib-
creditors.
It
mentioned the difference
to the
delinquency,
utable
creditor’s own
distinguishing
course
a case that
rights
justifiably
his
are
at
risk.
credi-
appellant
upon
there had cited and
tor with actual
bankrupt-
Moodys similarly rely:
which the
cy
inquire
“must
as to the bar date for
(Bankr.
Meyers,
Schwartz &
court found the case critically before it
different for another reason. 2 Second,
In
Meyers,
Schwartz &
the Southern Dis-
this court has affirmed Price I in
II,
trict of New York held that actual notice Price
209 dead- (empha- indeed on II, 871 F.2d at charged.” Price 523(c) complaint. a section See line for (“The fact added); id. at 99 also see sis 630; I, Rhodes, 61 B.R. at see also Price as a creditor Lompa list failed to Price Rhodes). (favorably citing B.R. at 893 obligation Lompa of his not relieve did claim.”). protect a con- timely action The Fifth Circuit reached similar take Murchison, 815 F.2d point Neeley warrants directly on clusion II is Price Cir.1987), ap- (5th decision here. affirmance II. cited in Price and Price provingly both 892; II, I, Price Price 79 B.R. appeal of a rejecting F.2d at 99. accept the Third, if we were even creditor, Neeley held judgment the Price decisions argument that Code, which Rule that “§ Moodys are distinguishable because places heavy designed implement, and scheduled creditor rights: protect his on the burden creditor recog- not, cases have other Price was presented is auto- type here a debt controlling. that distinction nized discharged the creditor re- matically unless court re- example, this dischargeability” quests a determination who, like a claimant argument of jected 815 F.2d at Neeley, in a fashion. state-court was a scheduled Moodys, 347.1 who insisted creditor and pro- knowledge of him on put inadequate to ceedings was and Rules Bankruptcy Code Finally, the had to he of the deadline appreciable dis- themselves articulate object to confirmation unsche- scheduled and tinction between *6 plan. explained: determining of purposes creditors for duled unsecured large, of a the holder When sufficient notice constitutes what receives nondischargeability claim such as for filing here] deadline [the bankruptcy court to make notice from had intended any plaints. Congress distinction, certainly could have has initiated it its such a that debtor or constructive it is under done so.2 proceedings, af- may be that its claim
inquiry notice suggest there is no that I do not mean proceedings fected, ignores the and it these two meaningful between distinction peril. at its refers the notice creditors; bankruptcy court classes more on notice required 1123. Even actual clearly F.2d at creditors, where- to those at to scheduled strikingly similar date the bar point, on facts usually must fend creditors that a sched- unscheduled here, BAP has held issue here, how- themselves. has actual who creditor judgment uled meaningful distinction ever, any is whether bankruptcy is debtor’s knowledge of the knowledge of the provides pressly that actual substantially Neeley similar facts 1. The in bar an unscheduled will Meyers: the debtor’s & in to those Schwartz (with credi- Mood- to the a claim provided actual notice like clerk creditor inadvertently challenge in a blank untimely failed to fill filing ys) tors but an from date. The 523(a)(3)(B) the bar to indicate notice form discharge 11 U.S.C. of his claim. un- that creditor’s Neeley however, court concluded say, that not It does expressly and timely complaint still barred creditor not bar a scheduled will Meyers reasoning & Schwartz Neeley, challenge. from cite Neeley, at 347. I may one from infer Nor 347. a scheduled its Neeley here relating analogous provision of an absence igno- plead inquiry notice cannot with creditor differs. their situation creditors scheduled opinion on express date. of the bar rance such a may seen need Congress have Meyers or on its & Neeley’srejection of Schwartz pre- provision since still be on that a creditor can determination problem and actual notice to receive sumed large- bankruptcy clerk is even when notice may been have do do when of what to ly to blame. overlooked. 523(a)(3)(B) as estab- do I read 2. Nor provision ex- lishing That such distinction. persists in the case a scheduled creditor (a) actual notice if who has not received LIMSICO, Petitioner, Laurence G. power court has done all its (b) provide notice and the creditor U.S. AND IMMIGRATION NATURAL independent knowledge SERVICE, Respondent. IZATION rights yet are at risk and does not act in protect time to them. would hold that it No. 90-70395. supports does not. The case law that hold- United States Appeals, Court of ing, Bankruptcy and the Code Rules do Ninth Circuit.
not contradict it. aWhen scheduled credi- inquiry tor is on the function of the Argued Aug. Submitted requirement served, notice has been Decided Dec. may the creditor not hold back his com- upon in reliance actual notice to which, admittedly which he is entitled but sent,
though may fail to arrive.
II light foregoing, I would hold had through
bar date their actual
Bucknum’s and that such no-
tice is sufficient to the law’s notice
requirement.
RYMER, Judge, concurring: Circuit per
I concur in opinion. curiam Be- Judge
cause O’Scannlainhas written on the issue, separately I write to under-
score that view of our conclusion that *7 given, unnecessary was it is to reach happens
the issue of what if notice is not
given. my colleague, Unlike there believe
is much to commend a different rule for creditors, are, which the creditors,
and unscheduled such as the Price,
Prices were. Cf. (9th Cir.1989) (“Here the creditor was
not notified pre- court within the
scribed time because he listed debtor.”). encourage would therefore
a court faced with the need to resolve the
question to consider afresh the difference
between scheduled and unscheduled credi-
tors, expectations about applicable scheme to each.