FILED
NOT FOR PUBLICATION JAN 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In re: SCOTT R. SMITH, No. 10-60009
Debtor. BAP No. 09-1117
SCOTT R. SMITH, MEMORANDUM *
Appellant,
v.
ENTREPRENEUR MEDIA, INC.,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Markell, Montali, and Jury, Bankruptcy Judges, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
*
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).
Scott R. Smith, a Chapter 7 debtor, appeals pro se from the Bankruptcy
Appellate Panel’s (“BAP”) judgment affirming the bankruptcy court’s judgment
determining that Smith’s debt to Entrepreneur Media, Inc. (“EMI”) is
nondischargeable in bankruptcy under 11 U.S.C. § 523(a)(6). We have jurisdiction
under 28 U.S.C. § 158(d). We review de novo the bankruptcy court’s conclusions
of law and for clear error its findings of fact. Petralia v. Jercich (In re Jercich),
238 F.3d 1202, 1204-05 (9th Cir. 2001). We affirm.
The bankruptcy court properly determined that the debt in question resulted
from a willful and malicious injury and therefore was not subject to discharge
under 11 U.S.C. § 523(a)(6). See Papadakis v. Zelis (In re Zelis), 66 F.3d 205,
208-09 (9th Cir. 1995) (setting forth elements of § 523(a)(6), and affirming
bankruptcy court’s determination that debtor’s conduct resulting in state court’s
award of sanctions was willful and malicious and therefore sanctions were
nondischargeable). Contrary to Smith’s contentions, the bankruptcy court did not
err in giving preclusive effect to the district court’s decision determining that
Smith infringed on EMI’s trademark and awarding EMI attorney’s fees. See Clark
v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir. 1992) (setting forth elements
of issue preclusion under federal law); see also Earthquake Sound Corp. v. Bumper
Indus., 352 F.3d 1210, 1216 (9th Cir. 2003) (court may award attorney’s fees only
2 10-60009
in exceptional trademark cases where defendant acted maliciously, fraudulently,
deliberately, or willfully).
We do not consider Smith’s contentions concerning the bankruptcy court’s
failure to sanction EMI sua sponte because Smith lacks standing, as he was not
“directly and adversely affected pecuniarily” by the decision and hence does not
qualify as a “person aggrieved.” Duckor Spradling & Metzger v. Baum Trust (In
re P.R.T.C., Inc.), 177 F.3d 774, 777 (9th Cir. 1999) (discussing additional
prudential standing requirement in bankruptcy cases); see also Fed. R. Bankr. P.
9011(c)(2) (providing for payment of sanctions to party only on party’s motion).
Smith’s remaining contentions are unpersuasive.
AFFIRMED.
3 10-60009