NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: PACIFIC THOMAS No. 17-15052
CORPORATION,
D.C. No. 3:15-cv-06321-MMC
Debtor,
______________________________
MEMORANDUM*
KYLE EVERETT, Chapter 11 Trustee,
Plaintiff-Appellee,
v.
THOMAS CAPITAL INVESTMENTS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Submitted March 15, 2018**
San Francisco, California
Before: PAEZ and IKUTA, Circuit Judges, and ADELMAN,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
Thomas Capital Investments (“TCI”) appeals a judgment of the district court
affirming a judgment of the bankruptcy court allowing the Chapter 11 trustee to
avoid $341,059.51 in preferential, fraudulent, and post-petition transfers. The
bankruptcy court entered its judgment after finding that TCI, by failing to respond
to the trustee’s requests for admissions within thirty days, was deemed to have
admitted all of the facts necessary to show that the transfers were avoidable. See
Fed. R. Bankr. P. 7036 (stating that Fed. R. Civ. P. 36 applies in adversary
proceedings).
TCI contends that the bankruptcy court erred by giving preclusive effect to a
judgment it entered in a related adversary case between the trustee and an entity
known as Pacific Trading Ventures. However, the bankruptcy did not give
preclusive effect to the prior judgment. Instead, it found that the trustee had proved
the elements of his case through the requests for admission. Thus, TCI’s argument
about the preclusive effect of the prior judgment is irrelevant.
TCI argues in its reply brief that the bankruptcy court erred in relying on the
requests for admission because the trustee never filed a motion to deem the
admissions admitted. Because this argument is raised for the first time in TCI’s
reply brief, it is waived. See, e.g., Rowland v. Chappell, 876 F.3d 1174, 1193 n.6
(9th Cir. 2017). Moreover, the argument is contrary to how Rule 36 operates. Rule
36 is self-executing, meaning that a party admits a matter by failing to serve a
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response to the request within thirty days; the opposing party does not have to file a
motion to deem the matter admitted. See Fed. R. Civ. P. 36(a)(3).
TCI also argues that the trustee should be penalized for not filing an answering
brief in the district court. However, the district court resolved the appeal on the
merits even though the trustee did not file a brief. The trustee has filed a brief in this
court and does not raise any issues that the district court did not discuss in its ruling.
We see no reason to penalize the trustee for not filing a brief in the district court.
Finally, TCI asserts that if this court determines in the related appeal between
the trustee and Pacific Trading Ventures that the trustee did not prove that a certain
lease was invalid, then the court must also reverse the judgment against TCI in this
appeal. However, TCI does not develop a legal argument in support of this assertion,
and therefore we deem the issue forfeited. See, e.g., Indep. Towers of Wash. v. Wash.,
350 F.3d 925, 929–30 (9th Cir. 2003). Moreover, the bankruptcy court’s order in
this case was based on TCI’s admissions, which were not at issue in the related case.
Even if the court were to reverse the judgment in the related case, TCI’s admissions
would stand as an independent basis for the bankruptcy court’s finding that the
transfers to TCI involved avoidable transfers of the debtor’s property.
AFFIRMED.
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