Opinion
No. 07-15961.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 19, 2007.
Naren Chaganti, Esq., Town Country, MO, for Appellant.
Mike K. Nakagawa, Nakagawa Rico, Sacramento, CA, Gregory J. Hughes, Esq., Hughes Pritchard LLP, Roseville, CA, for Appellee.
Office U.S. Trustee, United States Trustee's Office, Sacramento, CA, for Trustee.
Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior Judge, Presiding. D.C. No. CV-03-01967-LKK.
Before: PREGERSON, TALLMAN and CLIFTON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
This is an appeal from the district court's denial of a motion under Federal Rules of Civil Procedure 59 and 60 to set aside a judgment affirming a bankruptcy court judgment dismissing appellant Sarma's lawsuit.
The panel that considered prior appeals nos. 05-15311 and 05-15384 declines to hear this appeal. Appellee's motion to assign this appeal to the prior panel is therefore denied.
Appellant contends the bankruptcy court had no authority to enter a final order dismissing the case. Appellant's consent to such authority was properly implied from his affirmative actions, including his choice to remove the case to bankruptcy court. See In re Mann, 907 F.2d 923, 926 (9th Cir. 1990). Appellant's failure to contest the bankruptcy court's authority on prior appeal in this court means that argument is waived for purposes of this appeal. See Securities Investor Protection Corp. v. Vigman, 74 F.3d 932, 937 (9th Cir. 1996).
Further, neither the district court nor the bankruptcy court erred by failing to abstain from considering the state law claims after appellant removed the case to bankruptcy court, and did not move for abstention following removal. See 28 U.S.C. § 1334(c)(2); Security Farms v. Int'l Broth, of Teamsters (In re Gen. Teamsters, Warehousemen Helpers Union Local 890), 124 F.3d 999, 1009-10 (9th Cir. 1997).
Accordingly, we grant appellee's motion for summary affirmance.
All other pending motions are denied as moot.