NOT FOR PUBLICATION

MEMORANDUM1

When Appellant, Mathon & Rosensweig, PC ("Law Firm"), arrived at trial on its § 7274 adversary proceeding against Debtor/Appellee Gary Samuel Reznikov, the bankruptcy court granted Mr. Reznikov's alternate motion seeking dismissal of the adversary complaint with prejudice and granting judgment on the pleadings to Mr. Reznikov. The Law Firm appealed, asserting that the bankruptcy court erred when it granted judgment on the pleadings pursuant to Civil Rule 12(c). Because the record reflects that the bankruptcy court properly granted either judgment on partial findings pursuant to Civil Rule 52(c), or dismissal with prejudice pursuant to Civil Rule 41(b), we AFFIRM.

I. FACTS5

Irene Intelligator represented Mr. Reznikov's former spouse in dissolution proceedings in the California Superior Court. After the dissolution proceedings had concluded, on September 19, 2008, Mr. Reznikov commenced an action against Ms. Intelligator, which resulted in the entry of an Anti-Slapp Judgment against Mr. Reznikov and in favor of Ms. Intelligator on April 1, 2009.

Mr. Reznikov filed a voluntary chapter 7 petition on January 31, 2011. On February 23, 2011, Ms. Intelligator assigned to the Law Firm all court orders awarding fees and costs entered against Mr. Reznikov on or after August 17, 2010. On May 13, 2011, the Law Firm filed an adversary proceeding in Mr. Reznikov's bankruptcy case seeking both an exception to discharge of its debt and denial of Mr. Renikov's bankruptcy discharge in its entirety.

The Law Firm's complaint ("Complaint") asserted four claims for relief, the first of which was dismissed on Mr. Reznikov's motion filed on June 3, 2011.6 On October 7, 2011, the bankruptcy court entered a scheduling order to govern the remaining claims for relief in the complaint, all of which arose under § 727.7 The scheduling order set October 25, 2011 as the discovery deadline, and November 8, 2011 as the deadline for pre-trial motions. From the docket it appears that these deadlines were discussed at the September 6 Hearing.

On the discovery deadline date, the Law Firm filed a motion ("Extension Motion") to extend both the discovery deadline and the deadline for pre-trial motions on the basis that its counsel had miscalendared October 25, 2011 as the last day to "propound" discovery, not as the discovery deadline. [Adv. Proc. Docket #24]. The Law Firm also requested that a hearing on the Extension Motion be held on shortened notice. In denying the request for hearing on shortened notice, the bankruptcy court stated: "The motion may be brought on regular notice pursuant to LBRs. The motion is scarcely adequate on the merits even without opposition. But it raises no reason for shortened time, especially since the deadline has already passed." [Adv. Proc. Docket #25]. Mr. Reznikov both refused to stipulate to an extension of the deadline and opposed the Extension Motion, asserting that his counsel explicitly had requested clarification at the September 6 Hearing that October 25, 2011 was the date discovery was to "conclude" and that the Law Firm's counsel had prepared and lodged the scheduling order. Mr. Reznikov also pointed out that in the approximately five months that the adversary proceeding was pending prior to the discovery deadline, the Law Firm failed to conduct any discovery. [Adv. Proc. Docket #29].

The hearing on the Extension Motion was held December 1, 2011, at which time the Bankruptcy Court denied it. No transcript of this hearing is available. On December 7, 2011, the parties filed a Joint Pretrial Conference Order. [Adv. Proc. Docket #34]. The Law Firm listed as its witnesses Mr. Reznikov, Elena Reznikov, and Ms. Intelligator. At the pretrial hearing held December 8, 2011 ("December 8 Hearing"), the bankruptcy court orally set forth its scheduling order requiring that the Law Firm's declarations, which would constitute its direct testimony in support of its claims for relief, were due by February 17, 2012; trial ("Trial") was scheduled for March 19, 2012. [See Adv. Proc. Docket 44 at 3:6-11]. No order was entered setting these deadlines, and no transcript of the December 8 Hearing was made available to us by the Law Firm.

After the Law Firm failed to file any declaration in support of its case in chief, Mr. Reznikov filed a motion ("Dispositive Motion") in which he sought dismissal of the adversary proceeding for want of prosecution, or alternatively, a directed verdict. [Adv. Proc. Docket #44]. Mr. Reznikov timely filed his own declaration in support of his answer on February 26, 2012. [Adv. Proc. Docket #47]. The Law Firm thereafter filed a late declaration of Ms. Intelligator ("Intelligator Declaration") on March 6, 2012 as "direct testimony at trial by declaration. . . ." [Adv. Proc. Docket #52 at 1:21-22]. In its entirety the Intelligator Declaration states:

I, Irene Intelligator, declare as follows:

[Id. at 2:2-16].

The parties appeared at Trial on March 19, 2012 as scheduled. Although a transcript of this proceeding is available on the bankruptcy court docket [Adv. Proc. Docket #69], the Law Firm did not include it with its excerpts of record, which we find disturbing, in that its omission is an apparent attempt by the Law Firm to obfuscate the fact that at the Trial the Law Firm conceded it could not prevail at Trial because it failed to prepare properly. The Trial transcript reveals that the bankruptcy court addressed the Dispositive Motion in detail. We quote it at length.

Tr. of March 19, 2012 Trial at 8:3-11:3 (emphasis added).

With the Law Firm's concession that it could not make its case without a witness it had failed to subpoena and who did not appear, the bankruptcy court turned to the Dispositive Motion.

Id. at 11:16-18.

The bankruptcy court first observed that the Law Firm had waived its claim for relief pursuant to § 727(a)(3) by failing to include it in the joint pretrial stipulation.

Id. at 14:14-17.

Finally, the bankruptcy court noted that any dispute over the admission of Exhibit 13 was irrelevant because it would only relate to a claim for relief under § 727(a)(5), which never had been a part of the adversary proceeding. In concluding the hearing the bankruptcy court ruled:

Tr. of March 19, 2012 Trial at 16:9-17:12 (emphasis added).

The order granting the Dispositive Motion was entered April 2, 2012. The Law Firm timely filed the Reconsideration Motion, asserting that a dismissal for want of prosecution pursuant to Rule 7041 should be without prejudice unless otherwise provided by the court and then only in cases of extreme intentional misconduct. The Law Firm asserted it was improper for the bankruptcy court to state no basis for departing from the ordinary requirement of dismissal without prejudice. The Law Firm also asserted the bankruptcy court erred when it deemed a motion for dismissal to be a motion for judgment on the pleadings pursuant to Civil Rule 12(c).

The bankruptcy court entered a written disposition, stating its reasons for granting the Dispositive Motion and denied the Reconsideration Motion. The Law Firm timely appealed.

II. JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(J). We have jurisdiction under 28 U.S.C. § 158.

III. ISSUES9

Whether the bankruptcy court abused its discretion when it dismissed the Complaint with prejudice.

Whether the bankruptcy court erred when it granted judgment in favor of Mr. Reznikov.

IV. STANDARDS OF REVIEW

We review the bankruptcy court's dismissal of an adversary proceeding under Civil Rule 41(b) for an abuse of discretion. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 650 (9th Cir. 1991). We apply a two-part test to determine whether the bankruptcy court abused its discretion. United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009)(en banc). First, we consider de novo whether the bankruptcy court applied the correct legal standard to the relief requested. Id. Then, we review the bankruptcy court's fact findings for clear error. Id. at 1262 & n.20. We must affirm the bankruptcy court's fact findings unless we conclude that they are "(1) `illogical,' (2) `implausible,' or (3) without `support in inferences that may be drawn from the facts in the record.'" Id.

In reviewing judgments on partial findings made under Civil Rule 52(c), we review the bankruptcy court's factual findings for clear error and its legal conclusions de novo. Price v. U.S. Navy, 39 F.3d 1011, 1021 (9th Cir. 1994). De novo review is independent, with no deference given to the trial court's conclusions. See First Ave. W. Bldg., LLC v. James (In re Onecast Media, Inc.), 439 F.3d 558, 561 (9th Cir. 2006).

We may affirm the bankruptcy court on any basis supported by the record. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008).

V. DISCUSSION

The heart of the Bankruptcy Code's fresh start provisions is § 727. Subsection (a) requires the court to grant a debtor a discharge unless he has committed a prohibited act(s) prior to or during the bankruptcy case. Rule 4005 places on the Law Firm the burden of proving, by a preponderance of the evidence, the grounds to deny a discharge. See Grogan v. Garner, 498 U.S. 279 (1991). This required the Law Firm to make a prima facie case against Mr. Reznikov before any burden of proof shifted to Mr. Reznikov.

It is undisputed on the record we have reviewed that the Law Firm arrived at Trial without any evidence to support its claims for relief. The bankruptcy court parsed the evidence proffered and determined there was no basis upon which the Law Firm could satisfy its burden of proof on any element of the claims to be tried.

Civil Rule 41(b)10 provides:

Civil Rule 41(b) authorizes a court to dismiss at the close of a plaintiff's evidence for failure to establish a right to relief on the merits. 9 Wright & Miller Fed. Practice & Proc. § 2369 (3d ed. 2013).

Civil Rule 52(c)11 provides:

The Law Firm correctly points out that Civil Rule 41(b) dismissals with prejudice are viewed with disfavor, because they serve to deny a plaintiff the right to a trial on the merits. However, that was not the result of the dismissal in the matter on appeal. The Law Firm had every opportunity to present its case against Mr. Reznikov. It simply failed to do so. The bankruptcy court carefully considered every document that had been filed or submitted and concluded that the Law Firm could not meet its burden of proof to establish a prima facie case. The Law Firm in fact conceded this point. To argue, as the Law Firm does in its Opening Brief, that "the trial court based its decision solely on a perceived inability to provide factual support for the allegations of the complaint and did not accept those allegations as true," committing reversible error under Civil Rule 12(c), reflects how completely the Law Firm fails to understand trial procedures and even the purpose of a trial. The problem for the Law firm is that the day of trial had arrived, and it had no proof with which to satisfy its burdens. In these circumstances, the bankruptcy court properly awarded judgment in favor of Mr. Reznikov, with prejudice, as it was authorized to do pursuant to Civil Rule 52(c) and Civil Rule 41(b). See, e.g., Al-Torki v. Kaempen, 78 F.3d 1381, 1384-85 (9th Cir. 1996).

VI. CONCLUSION

A plaintiff cannot appear for trial with no evidence and assert error when the bankruptcy court either dismisses its case with prejudice or awards judgment to the defendant. The Law Firm had its "day in court" and squandered it. We AFFIRM the Judgment of the bankruptcy court.