Opinion
NOT FOR PUBLICATION
Argued and Submitted at Pasadena, California: March 22, 2007
Appeal from the United States Bankruptcy Court for the Central District of California. Bk. No. SA 01-15803-JR. Adv. No. SA 02-01962-JR. Honorable John E. Ryan, Bankruptcy Judge, Presiding.
Before: DUNN, MONTALI and PAPPAS, Bankruptcy Judges.
MEMORANDUM
Frustrated by the repeated failures of plaintiff/appellant to comply with the Local Rules, the bankruptcy court dismissed her adversary proceeding. We AFFIRM.
Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, § § 101-1330, as enacted and promulgated prior to October 17, 2005, the effective date of most of the provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. 109-8, 119 Stat. 23. All " Rule" or " FRBP" references are to the Federal Rules of Bankruptcy Procedure. All " Local Rules" references are to the Local Bankruptcy Rules, Central District of California. All " 9th Cir. BAP Rule" references are to the Rules of the United States Bankruptcy Appellate Panel of the Ninth Circuit. All " FRAP" references are to the Federal Rules of Appellate Procedure.
I. FACTS
In 1996 Manorama Sharma (" Dr. Sharma") hired Rashida Jaffer (" Ms. Jaffer"), an attorney who has been in practice for more than twenty years, to represent her in litigation in state court (" Prepetition Litigation"). Judgment was entered against Dr. Sharma, who thereafter filed a legal malpractice claim against Ms. Jaffer (" Malpractice Litigation"). Ms. Jaffer filed a counterclaim for breach of contract and fraud (" Counterclaim"). On July 2, 2001, on the eve of trial of the Counterclaim in the Malpractice Litigation, Dr. Sharma filed for bankruptcy protection.
Dr. Sharma did not pay Ms. Jaffer's fees in an amount of at least $20,000, and possibly as much as $50,000.
On October 18, 2002, Ms. Jaffer filed an adversary proceeding (" Adversary Proceeding"), seeking to have the debt for her unpaid attorneys fees held nondischargeable pursuant to § § 523(a)(2)(A) and (a)(6), and seeking a denial of Dr. Sharma's discharge pursuant to § § 727(a)(4)(A), (a)(5) and (a)(6)(A). On June 20, 2006, i.e., three years, eight months later, the bankruptcy court dismissed the Adversary Proceeding with prejudice as a sanction for Ms. Jaffer's repeated disregard of the Local Rules.
Dr. Sharma's bankruptcy case was initiated under chapter 7 on July 2, 2001, converted to chapter 11, and finally reconverted to chapter 7. The timeliness of the Adversary Proceeding under Rules 4004(a) and 4007(c) is not contested.
A. Prosecution of the Adversary Proceeding Between October 18, 2002, and February 14, 2006
The record reflects the following chronology in the prosecution of the Adversary Proceeding as relevant to this appeal:
On October 18, 2002, Ms. Jaffer filed the Adversary Proceeding. Ms. Jaffer's initial pleading ultimately was finalized in the form of her Third Amended Complaint filed May 10, 2004.
On January 14, 2005, Dr. Sharma filed a motion to compel Ms. Jaffer to respond to discovery requests and to appear for her deposition. The bankruptcy court
determined that [Ms. Jaffer] refused to appear for her deposition without a legal justification in violation of the [Local] Rules. Moreover, the court determined that [Ms. Jaffer] was unwilling to participate in the preparation of the written stipulation that [Dr. Sharma] was required to file with the motion to compel. As a result the court granted [Dr. Sharma's] motion to compel, awarded [Dr. Sharma] $3,000 for costs incurred in connection with bringing the motion to compel, and warned [Ms. Jaffer] that any further failure to comply with the court's order[s] or the Local Rules would result in severe sanctions.
Memorandum Decision at 3, Jun. 21, 2006.
The Adversary Proceeding was dismissed June 8, 2005, after Ms. Jaffer failed both to appear at the June 7, 2005, joint status conference (" June 7 Status Conference"), and to submit a joint status report fourteen days in advance as required by Local Rule 7016-1. The bankruptcy court granted Ms. Jaffer's motion for reconsideration on September 14, 2005, on the basis that Ms. Jaffer was hospitalized at the time of the June 7 Status Conference. In reopening the Adversary Proceeding, the bankruptcy court set a joint status conference to be held October 18, 2005 (" October 18 Status Conference").
Ms. Jaffer arrived late at and therefore missed the October 18 Status Conference. She again filed neither a joint nor a unilateral status report as required by Local Rule 7016-1(a)(2). Because opposing counsel was still in the courtroom when Ms. Jaffer did arrive, the bankruptcy judge recalled the case and " instructed [Ms. Jaffer] that any failure to be on time in the future would result in sanctions." Memorandum Decision at 4, Jun. 21, 2006. The record of the October 18 Status Conference contains the following dialog between the bankruptcy judge and Ms. Jaffer:
THE COURT: Ms. Jaffer, you - you were late again.
MS. JAFFER: Your Honor, for a few minutes I was -
THE COURT: No, you're late. About every hearing that I have you've been late to.
MS. JAFFER: No.
. . .
MS. JAFFER Your Honor, I came - I came here at - just a few minutes -
THE COURT: You were late.
MS. JAFFER: Okay. Fine.
. . .
THE COURT: [To Ms. Jaffer after giving the continued status conference date] So mark that down and put down a big asterisk " Be on time, " all right, because I'm going to - if it happens again, if you fail to appear - this has happened before. I know it has.
MS. JAFFER: No, your Honor.
THE COURT: Yes, it has. Don't tell me it hasn't. If it happens again, . . . I'm going to impose appropriate sanctions, okay?
. . .
THE COURT: Ms. Jaffer, listen to me very carefully and don't argue with me. You have been late before. You were late here today, and I'm not going to put up with it any longer. So you are on notice.
Transcript of Hearing (Oct. 18, 2005), pp. 2:16-4:13.
Ms. Jaffer again failed to file a joint or unilateral status report fourteen days before the January 3, 2006, joint status conference (" January 3 Status Conference"). At the January 3 Status Conference, the bankruptcy court set the matter for a pre-trial conference on February 14, 2006 (" February 14 Pre-Trial Conference"), and explicitly instructed both parties to " comply with the procedures of the Local Rules for drafting and submitting a joint pre-trial order."
When Ms. Jaffer failed to comply with the Local Rules for submitting a joint pre-trial order at the February 14 Pre-Trial Conference, the bankruptcy court set one last pre-trial conference for April 11, 2006 (" April 11 Pre-Trial Conference"), and warned Ms. Jaffer that failure to comply with the Local Rules by the time of the April 11 Pre-Trial Conference would result in dismissal of the Adversary Proceeding with prejudice.
Ms. Jaffer, if you detect some frustration on my part I am frustrated . . . [w]ith you. Over and over and over during this process in connection with this adversary proceeding you have failed to follow the local rules . . . [Y]ou've got more excuses for failing to comply with the requirements than anybody else I have ever had before me. You are an attorney . . . Now listen you didn't follow the rules here and I'm going to give you one more chance to do it . . . One more chance and I'm going to make it very clear on the record here that you have been given opportunities to do what you were supposed to do through this proceeding but you have failed in a number of occasions to do that, and I have given you second chance, third chance to carry out your responsibilities. I am today giving you one last chance . . . I am going to continue this pre-trial conference out far enough for you to meet and confer 28 days prior to the continued pre-trial conference and to comply with the Local Rules. I will hold you strictly to complying with those requirements. If you do not, I am going to dismiss this complaint with prejudice.
Transcript of Hearing (Feb. 14, 2006), pp. 5:13-7:4.
The bankruptcy court formalized its warning in its March 13, 2006 Order Re: Continued Pretrial Conference (" March 13 Order"). The March 13 Order stated:
The Court having considered plaintiff's failures to comply with Local Bankruptcy Rule 7016-1 including her failure to timely prepare a proposed joint pre-trial order, and having considered the arguments of counsel and for good cause, the Court hereby makes the following order:
. . .
IT IS . . . ORDERED that full compliance with Local Bankruptcy Rule 7016-1 is required. If plaintiff fails to prepare a proposed joint pretrial order, defendant shall file a unilateral pretrial order 14 days prior to the Pretrial Conference.
IT IS FURTHER ORDERED that any failure of plaintiff to fully comply with the requirements of Local Bankruptcy Rule 7016-1 will result in the Court dismissing this action with prejudice.
B. Prosecution of the Adversary Proceeding After February 14, 2006
Ultimately, the " joint" pre-trial order Ms. Jaffer filed fourteen days prior to the April 11 Pre-Trial Conference was not in compliance with Local Rule 7016-1.
As summarized by the bankruptcy court:
Local Rule 7016-1(b)(1) requires that the parties meet and confer at least 28 days before the date set for the pre-trial conference. Bankr. C.D. Cal. 7016-1(b)(1). The plaintiff is then required to sign a proposed pre-trial order and serve it on all parties by no later than the fifth court day prior to the last day for filing the proposed pre-trial order. Id. 7016-1(c). Within three days of receipt of the plaintiff's proposed pre-trial order, the opposing party must take certain action depending on whether that party agrees or disagrees with the proposed order. Id. 7016-1(d). If the party disagrees with the proposed pre-trial order he or she must immediately meet with the plaintiff " in a good faith effort to achieve a joint proposed order. . . ." Id.
Memorandum Decision at 9, n.7, Jun. 21, 2006.
The bankruptcy court found that although Ms. Jaffer did meet and confer timely as required by Local Rule 7016-1(b)(1), and did timely serve her proposed pre-trial order (" Proposed Pre-Trial Order") on Dr. Sharma within the time provided by Local Rule 7016-1(c), her compliance with the Local Rule ended there.
Upon receipt of the Proposed Pre-Trial Order, Dr. Sharma's counsel, D. Edward Hays (" Mr. Hays"), initiated communications in an effort to achieve a joint pre-trial order. Of particular relevance to this appeal is Mr. Hays' insistence that Ms. Jaffer provide him copies of her exhibits. By telephone communication on March 15, 2006 (" March 15 Communication"), Mr. Hays explained to Ms. Jaffer that the pre-trial order must include a provision that " all exhibits have been exchanged. . . ." He also explained that he could not prepare his trial exhibit list without reviewing the exact documents Ms. Jaffer would be using at trial. During the March 15 Communication, Ms. Jaffer agreed to provide a tabbed set of copies of all documents identified as exhibits no later than the morning of Monday, March 20, 2006. Ms. Jaffer also agreed that Dr. Sharma's three business day response deadline under Local Rule 7016-1 would commence upon receipt of the exhibits from Ms. Jaffer. The exhibits, in envelopes postmarked Monday, March 20, 2006, and Tuesday March 21, 2006, finally were received by Mr. Hays on Thursday, March 23, 2006.
Ms. Jaffer contends that she did not agree:
The exhibits were not tabbed and did not correspond to the list of exhibits designated by Ms. Jaffer; in addition, many of the documents were missing pages. Mr. Hays spent more than an hour on the telephone with Ms. Jaffer on March 23, 2006 (" March 23 Communication"), trying to sort out the exhibits and match them to the exhibit list. During the March 23 Communication, Mr. Hays determined not only that many documents were still missing and not produced, but that several documents had been produced that were not designated on Ms. Jaffer's exhibit list. Ms. Jaffer agreed to fax the missing documents to Mr. Hays by noon on Friday, March 24, 2006. Despite sending multiple faxes to Mr. Hays on March 24, 2006, Ms. Jaffer still did not provide all of the missing documents. To confirm what he had received, Mr. Hays then made copies of all documents he had received from Ms. Jaffer and sent them overnight to her.
This Panel has fared no better in receiving a record from Ms. Jaffer. On December 22, 2006, the BAP Clerk entered his " Clerk's Order Re Brief Deficiency" (" Deficiency Order") advising (1) that the Clerk did not receive a motion allegedly sent by Ms. Jaffer seeking to dispense with the preparation and filing of the appendix and (2) that the BAP relies on the appendix supplied by the parties rather than on the record of the bankruptcy court. The Deficiency Order pointed out that Ms. Jaffer's brief quoted from a portion of a transcript without providing a copy of that transcript as part of her excerpts of record. The Deficiency Order required Ms. Jaffer to file and serve her excerpts of record in support of her opening brief within fourteen days. Ms. Jaffer then filed two volumes of her " Appendix, " on January 11, 2007. Her Table of Contents for the appendices was not filed until January 29, 2007. Significantly, the Table of Contents does not correspond, either by document number or document name, to Ms. Jaffer's actual appendices, and her page number references in the Table of Contents are meaningless because she failed to number the pages in her appendices. Ms. Jaffer's Supplemental Appendix filed February 28, 2007, contains two documents, neither of which is tabbed or numbered, while the Table of Contents for the Supplemental Appendix identifies only one additional document.
Mr. Hays proceeded to work over the weekend to prepare Dr. Sharma's proposed revisions to the joint pre-trial order, which was due on Tuesday, March 28, 2007. On Monday, March 27, 2006, one business day after receiving the last of Ms. Jaffer's exhibits, Mr. Hays sent an executed revised joint pre-trial order by messenger to Ms. Jaffer, together with all of the documents on Dr. Sharma's trial exhibit list. Ms. Jaffer received the documents after 6:30 Monday evening. On the afternoon of March 28, Mr. Hays attempted to follow up and discuss with Ms. Jaffer any issues with his proposed revisions to the joint pre-trial order, but he was unable to reach Ms. Jaffer. Mr. Hays left Ms. Jaffer a voice mail message which she returned the following day, March 29, at which time Mr. Hays learned that Ms. Jaffer had substituted pages and made other changes to the document bearing his signature and filed it with the bankruptcy court without obtaining Mr. Hays' consent to the changes.
At the April 11 Pre-Trial Conference the bankruptcy court continued the pre-trial conference to May 1, 2006, and set an evidentiary hearing (" May 1 Evidentiary Hearing") to determine whether the Adversary Proceeding should be dismissed. On June 21, 2006, the bankruptcy court entered its Memorandum Decision, in which the court found:
[T]his court's repeated warnings and imposition of lesser sanctions have not been effective in securing [Ms. Jaffer's] compliance with the Local Rules and the court's orders. Plaintiff is an attorney and she should know the importance of following the Local Rules and the court's orders. It is inexplicable why she has not taken her responsibilities in prosecuting the Adversary Proceeding more seriously. [Ms. Jaffer] has frustrated this court's attempts to get this matter to trial. She has prejudiced [Dr. Sharma] by stringing the Adversary Proceeding out beyond what is reasonable or necessary to resolve this matter by her ongoing failures to comply. Additionally, [Dr. Sharma] has had to incur significant additional costs to address [Ms. Jaffer's] failures to carry out her responsibilities. As a result, the court determines that it is appropriate and necessary to dismiss the Complaint.
On August 4, 2006, the bankruptcy court denied Ms. Jaffer's motion for reconsideration, and this appeal ensued.
The Panel did not review the motion for reconsideration, entitled " Motion for Reconsideration and To Alter and Amend Findings of Facts and Law." While Ms. Jaffer's Table of Contents reflects that the motion for reconsideration is found at Tab 5 in Volume 1 of her Appendix, in fact Tab 5 is the two-page order entered by the bankruptcy court on April 13, 2006, continuing the pre-trial conference and setting the May 1 Evidentiary Hearing. In an effort to locate the motion for reconsideration, we reviewed the first page of each Tab in Volume 1 of Ms. Jaffer's Appendix. While the Table of Contents identifies twenty-six tabs in Volume 1, Volume 1 consists of only nineteen. It does not appear Ms. Jaffer included the motion for reconsideration. As stated in the Deficiency Order, which specifically referred Ms. Jaffer to the explanatory notes of 9th Cir. BAP Rule 8009(b)-1:
II. JURISDICTION
The bankruptcy court had jurisdiction pursuant to 28 U.S.C. § § 1334 and 157(b)(1) and (b)(2)(I) and (J). We have jurisdiction pursuant to 28 U.S.C. § 158.
III. ISSUE
Whether the bankruptcy court abused its discretion in dismissing the Adversary Proceeding with prejudice.
IV. STANDARD OF REVIEW
The trial court's dismissal of an action for plaintiff's failure to prosecute under Fed.R.Civ.P. 41(b) is reviewed for an abuse of discretion. Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996); Moneymaker v. CoBEN (In re Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994).
V. DISCUSSION
A. The Bankruptcy Court's Analysis of the Factors to Consider Prior to Dismissing the Adversary Proceeding With Prejudice
" Rule 41 F.R. Civ. P. applies in adversary proceedings, . . . ." Rule 7041. Fed.R.Civ.P. 41(b) provides:
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
In addition to a motion by a defendant, a trial court, here, the bankruptcy court, has the inherent power to dismiss for failure to comply with a rule or order of the court. In re C.S. Crawford & Co., 423 F.2d 1322, 1325 (9th Cir. 1970). We note that an involuntary dismissal sua sponte requires that there has been notice giving a warning that dismissal is imminent. Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992). The bankruptcy court's March 13 Order provided such notice.
In dismissing a case for failure to comply with a court order, the bankruptcy court must consider:
(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.
Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987).
The bankruptcy court held that the first two Malone factors, public interest in expeditious resolution of litigation and the court's interest in docket control, supported dismissal of the case where during the three and one-half years the Adversary Proceeding was pending,
[Ms. Jaffer's] repeated failure to comply with the Local Rules has needlessly delayed the resolution of this matter. Specifically, the court has on multiple occasions continued status and pre-trial conferences to provide [Ms. Jaffer] with " second chances" to comply with the Local Rules.
With respect to the third Malone factor, the bankruptcy court held that " Ms. Jaffer's repeated and inexcusable disregard for the Local Rules has impaired Defendant's ability to go to trial and obtain a decision in this case, " and prejudiced Dr. Sharma, " especially . . . in light of [Dr. Sharma's] good faith efforts, through her counsel, to comply with the Local Rules."
Finally, when dismissing under Fed.R.Civ.P. 41(b), a court is required to consider less drastic measures. Malone, 833 F.2d at 131-32; Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). In Henderson, the court of appeals held that the trial court need not exhaust every sanction short of dismissal before finally dismissing a case, but must explore possible and meaningful alternatives. Id., citing Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981).
In evaluating whether the bankruptcy court considered alternatives to dismissal, the reviewing court should consider the following factors:
(1) Did the court explicitly discuss the feasibility of less drastic sanctions and explain why alternative sanctions would be inadequate? (2) Did the court implement alternative methods of sanctioning or curing the malfeasance before ordering dismissal? (3) Did the court warn plaintiff of the possibility of dismissal before actually ordering dismissal?
Malone, 833 F.2d at 132.
The answer to each of these questions is clear from both the Memorandum Decision and the record on appeal. The bankruptcy court addressed these factors directly:
[T]his court has considered and implemented less drastic alternatives. First, the court has awarded [Dr. Sharma] $3,000 in costs for [Ms. Jaffer's] unjustified failure to comply with the Local Rules regarding discovery. Second, the court has repeatedly voiced its displeasure with [Ms. Jaffer's] conduct and warned [Ms. Jaffer] that failure to comply with the Local Rules would result in sanctions, including a warning on February 14, 2006 that she had one last chance to comply with the Local Rules or risk dismissal.
. . .
Put simply, this court's repeated warnings and imposition of lesser sanctions have not been effective in securing [Ms. Jaffer's] compliance with the Local Rules and the court's orders.
B. The Bankruptcy Court Did Not Abuse Its Discretion in Dismissing the Adversary Proceeding
The record supports the findings of the bankruptcy court on each of the factors identified in Malone. Factors (1), (2), (3) and (5) tip strongly in favor of dismissal. In particular, it is untenable that Dr. Sharma's right to a determination of her entitlement to a discharge was held hostage to Ms. Jaffer's lack of diligence and/or understanding in prosecuting the Adversary Proceeding. Under the circumstances of this Adversary Proceeding, the policy preference that disputes be resolved on the merits, factor (4) under Malone, is outweighed. We cannot find that the bankruptcy court abused its discretion in dismissing the Adversary Proceeding with prejudice.
C. Ms. Jaffer's Issues on Appeal
In this appeal, Ms. Jaffer focuses not on her own conduct, which led to the dismissal of the Adversary Proceeding, but on that of Dr. Sharma and her counsel, Mr. Hays. In particular, in her opening brief she contends that Mr. Hays:
(i) . . . failed to meet and confer with her for almost 15 days after [she] requested it; (ii) removed [her] name on the caption page and put his own; (iii) completely changed [her] [Proposed Pre-Trial Order] and deleted many portions of it; (iv) failed to return [the Proposed Pre-Trial Order] within three (3) days, but after 15 days at 6:30 p.m., the day before it was due to be filed; (v) did not exchange an Exhibit List nor give [her] any Exhibits prior to the pretrial Order, and; did not exchange a witness List[.]
It is clear from the record, that any delay in Mr. Hays' response to the Proposed Pretrial Order was the direct result of Ms. Jaffer failing to provide documents both as required and as promised. Ms. Jaffer herself agreed that Mr. Hays would have three business days from the date he received her documents to respond. She alone was in control of the timing of her production of the documents. If, as Ms. Jaffer asserts, she was prejudiced by, in her view, Mr. Hays' delay in responding to the Proposed Pretrial Order, her procedural remedy was set forth in Local Rule 7016-1(e)(1):
If the plaintiff has complied with paragraph (c) above and does not receive a timely response from the other parties, it shall file and serve its unilateral pre-trial order at least 14 days before the trial or pre-trial conference, if one is ordered. At the same time, plaintiff shall file and serve a declaration asserting the failure of the other parties to respond.
Ms. Jaffer obviously was familiar with Local Rule 7016-1(e)(1), as evidenced by her invocation of that Local Rule on February 3, 2006, when she filed, albeit late, her " Declaration of Rashida Jaffer Re Filing of Unilateral Pre-Trial Order." Further, her opening brief reflects that she clearly understands the function of a pre-trial conference and a pre-trial order:
The purpose of a pretrial conference is to simplify issues, amend pleadings where necessary and to avoid unnecessary proof of facts at trial. . . . It is not to invade the trial function of resolving those issues. The primary purpose is to eliminate surprise and unfairness to the other side. . . . Attorneys at pretrial Conference must make full and fair disclosure of their views as to what the real issues at trial will be.
[Local] Rule 7016-1 provides for implementing pretrial procedures in order to lessen the cost of litigation and expedite the disposition of cases . . . If counsel are unable to agree, pretrial order representing view of both sides should be submitted. . . .
Despite her familiarity with Local Rule 7016-1(e)(1) and her understanding of the function of pretrial conferences and pretrial orders, rather than comply with the Local Rules to provide the bankruptcy court with a true picture of the status of the dispute as of March 28, 2006, e.g., by filing a unilateral status report and a declaration asserting that Mr. Hays failed to respond, Ms. Jaffer misled the bankruptcy court by filing a document she titled " PreTrial Order, " a document she created by replacing pages of the document Mr. Hays had sent her, to which she attached, without consultation with Mr. Hays, the signature page from Mr. Hays' document. Above the signatures is a representation which is to be made by both parties when signing: " The foregoing admissions have been made by the parties, and the parties have specified the foregoing issues of fact and law remaining to be litigated." In light of this provision, Ms. Jaffer's signature on the " PreTrial Order, " and her filing the altered document with Mr. Hays' signature, clearly, as characterized by Mr. Hays, constituted a fraud upon the court.
Remarkably, Ms. Jaffer insisted to the bankruptcy court that the changes were minor. In her opening statement at the May 1 Evidentiary Hearing, Ms. Jaffer states:
Only one page I really changed. Everything else was the same almost in my old order as well as in the new order, your Honor. If he had the right to change my order, I should change his order too. So I change the first two pages and I added those two pages to his order and I gave it to the Court right away your Honor. . . .
The next day immediately I called [Mr. Hays]. I called him the next day and told him that yes I filed the order the way I had prepared it to some extent and the way [he] had prepared it. The pages are like his. I just changed the first few pages, your Honor. The first three pages I changed. That's all I changed and the other two pages I change. Nothing else.
Transcript of Hearing (May 1, 2006), pp. 14:14-15:9.
Mr. Hays prepared a red-lined copy highlighting the changes between the revised joint pre-trial order he sent Ms. Jaffer and the " PreTrial Order" Ms. Jaffer filed with the bankruptcy court. It tells a much different story.
Finally, it appears that Ms. Jaffer contends that the bankruptcy court should not have considered the following facts in its determination whether dismissal of the Adversary Proceeding was appropriate:
o The order entered against Ms. Jaffer in 2003 on the motion to compel, including the award of sanctions
o Ms. Jaffer's failure to appear at the June 7 Status Conference
o Ms. Jaffer's failure to appear timely at the October 18 Status Conference
o Ms. Jaffer's failure to file a joint status conference report for the January 3 Status Conference
Contrary to Ms. Jaffer's position, and as discussed above, these events from the prior history of the Adversary Proceeding are precisely the type of facts that the bankruptcy court was required to consider in its analysis under Malone.
VI. CONCLUSION
The bankruptcy court exhibited commendable patience with an experienced attorney who was unable or unwilling to prosecute her adversary proceeding against Dr. Sharma with diligence. The bankruptcy court gave her fair and ample warnings about the likely consequence of her repeated shortcomings. The bankruptcy court's findings are well supported by the record. The bankruptcy court correctly weighed the Malone factors. Consequently, the bankruptcy court did not abuse its discretion in dismissing the Adversary Proceeding with prejudice. We AFFIRM.
I called [Mr. Hays] at about 11:30 a.m. but he kept on talking till almost 11:50 when I told him I have to run - go for a meeting at noon. I was late for the meeting. It was for the first time that he insisted that I send him all the exhibits and even tab them . . . He started typing a e-mail to me and asked me to sign it " Agreed" which I did not. Since I was in a great hurry, I just kept saying yes, O K. I told him I will send the Exhibits by Monday, March 20, 2006.
Supplemental Declaration of Rashida Jaffer (Apr. 21, 2006), p. 2.
The parties are further referred to FRBP 8010(a)(1)(D) and (a)(2) which address the related problem created by appellants who do not make explicit references to the parts of the record that support their factual allegations and arguments. Opposing parties and the court are not obliged to search the entire record unaided for error. See Dela Rosa v. Scottsdale Memorial Health Systems, Inc., 136 F.3d 1241 (9th Cir. 1998); Syncom Capital Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991); FRAP Rule 10(b)(2).