dissenting.
Under the circumstances of this case and pursuant to the abuse of discretion standard of review, I cannot say with a “definite and firm conviction” that the trial court “committed a clear error of judgment” in refusing to grant a continuance. Mission Indians, 824 F.2d at 724.
The bankruptcy court’s procedure was to accept declarations to establish the prima facie case if the witnesses were available for cross-examination. The plaintiff’s attorney knew of this procedure and still failed to have the witnesses appear. Accordingly, the bankruptcy court refused to accept evidence which was not subject to cross examination.
The majority’s opinion relies inter alia on the fact that “Appellant’s counsel, at a minimum, should have been allowed to call Mr. Harris.” Additionally, the majority’s disposition states that Jack Bittelman was under subpoena by the appellant and failed to appear.” Based on the above, the majority concludes that the appellant would have “consumed some of the time necessary to obtain additional witnesses.”
However, pursuant to the bankruptcy court’s procedure, the trial judge did allow the plaintiff’s attorney to introduce Mr. Harris’ testimony and accepted Mr. Harris’ declaration without exception. Mr. Harris had nothing more to add in the way of evidence and the defendant’s attorney did not object to the evidence. There was no need to call Mr. Harris to give oral testimony, because his testimony had already been accepted. The plaintiff’s attorney recognized this at the trial, but now inconsistently argues that he should have been allowed to call Mr. Harris.
As for the subpoenaed witness of Jack Bittelman, it was essentially uncontradicted at the trial and on appeal that even if Jack Bittelman was present to testify, he could not have added anything to establish the plaintiff’s prima facie case.
Although there is nothing in the federal rules that requires all witnesses to be on hand at the beginning of the trial, this was not the basis of the dismissal. Rather, the court merely determined that the plaintiff had failed to establish his case of alleged fraud. This fact is not disputed by the appellant.
Given the circumstances and record of the instant case, I am not convinced that the trial court committed a clear error of judgment in refusing to grant a continuance until the plaintiff could “close his business deal” and appear to testify.
Additionally, in reviewing whether the bankruptcy court abused its discretion by denying the requested continuance, two important factors are appropriate for consideration.
The first factor is the bankruptcy court’s need to manage its docket. Indeed, the *234bankruptcy court in the instant case stated that “I can’t allow others to run the court.” Transcript at 11. The appellant himself was obviously the most crucial witness for establishing his own case, however, he chose to risk the eventual outcome in order to “close a business deal.” Although the appellant may have been concerned with the problem of “unnecessary waiting” in the event of a backlog in the court proceedings, conduct such as placing witnesses on “one-hour call” merely adds to the continually increasing backlog of bankruptcy courts’ calendars. If such a practice were allowed, the resulting and inevitable delays would create unmanageable calendars.
The second factor to consider is the prejudice to the opposing party. In the instant case, it is evident that the defendant would have been prejudiced by increased attorney’s fees if the trial would have been postponed for at least an additional hour.
Given these considerations, and under the circumstances of the instant case, the appellant has, in my view, failed to show that the bankruptcy court committed a clear error of judgment in refusing to grant the appellant’s request for a continuance. See Mission Indians, 824 F.2d at 724.