FILED
NOT FOR PUBLICATION SEP 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: FRB, INC., No. 12-60053
Debtor, BAP No. 12-1013
TJG/ SUMMITT DEVELOPMENT MEMORANDUM*
CORPORATION,
Appellant,
v.
JAMES F. RIGBY, Jr.,
Appellee.
In re: FRB, INC., No. 12-60054
Debtor, BAP No. 12-1068
TJG/ SUMMITT DEVELOPMENT
CORPORATION,
Appellant,
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
JAMES F. RIGBY, Jr.,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Hollowell, Markell, and Jury, Bankruptcy Judges, Presiding
Argued and Submitted August 26, 2013
Seattle, Washington
Before: HAWKINS, McKEOWN, and CLIFTON, Circuit Judges.
TJG/Summitt Development Corporation (“Summitt”) appeals from the
Bankruptcy Appellate Panel’s (“BAP”) orders dismissing its appeals because of
Summitt’s corporate suspension and denying its motion for reconsideration after
the corporate powers were revived.
Under the circumstances, the BAP correctly dismissed Summitt’s appeals.
Traub Co. v. Coffee Break Serv., Inc., 425 P.2d 790, 792 (1967) (Under California
law, “a suspended corporation not shown to have been reinstated lacks the right or
capacity to defend an action or to appeal from an adverse decision.”). We need not
address whether the BAP abused its discretion in denying Summitt’s motion for
reconsideration under Federal Rule of Civil Procedure 60(b); the ultimate result
would be the same because Summitt’s claims cannot be sustained.
2
We reject Summitt’s challenge to the bankruptcy court’s subject matter
jurisdiction. The bankruptcy court had jurisdiction over the estate of FRB, Inc.,
(“FRB”) because FRB filed a voluntary petition for bankruptcy. See 28 U.S.C.
§ 1334(e).
The bankruptcy court did not abuse its discretion in finding that equitable
principles precluded Summitt, at this late stage and after active participation in the
bankruptcy proceedings, from contesting James F. Rigby’s authority to file the
petition on FRB’s behalf. See Rudebeck v. Sanderson (In re Nonpareil Consol.
Copper Co.), 227 F. 575, 578 (9th Cir. 1915) (“[T]hey could not stand idly by and
permit the administration of the estate to proceed in the bankruptcy court until
some step was taken that did not meet their approval. Whether the petition in
bankruptcy was filed by competent authority or not, it was the duty of the
petitioners to move against it promptly, if at all, and this they failed to do.”); see
also Beaty v. Selinger (In re Beaty), 306 F.3d 914, 921 (9th Cir. 2002) (reviewing
application of laches doctrine for an abuse of discretion).
To the extent the issue is not moot, we also affirm the order authorizing the
sale of the California property.
AFFIRMED.
3