FILED
NOT FOR PUBLICATION
JAN 10 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: CAPITAL OPTIONS, LLC, No. 16-60052
Debtor, BAP No. 15-1165
______________________
CAPITAL OPTIONS, LLC, MEMORANDUM*
Appellant,
v.
C. DENNIS LOOMIS; BAKER
HOSTETLER, LLP,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kurtz, Jury, and Jaime, Bankruptcy Judges, Presiding
Argued and Submitted October 17, 2017
San Francisco, California
Before: WALLACE, CALLAHAN, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
This is an appeal from the Bankruptcy Court’s dismissal of claims by
Capital Options, LLC (Capital) against an attorney, C. Dennis Loomis, and his law
firm, Baker Hostetler LLP (collectively Loomis). Capital alleged that it had an
interest in another organization, G2, LLC (G2), and that Loomis was a trustee of
G2 funds and thus had a non-waivable fiduciary duty to Capital. The Bankruptcy
Court, having dismissed Capital’s underlying adversary proceeding in which it
asserted its interest in G2, dismissed Capital’s complaint against Loomis. We have
jurisdiction under 28 U.S.C. § 158(d)(1), and affirm.
A grant of a Federal Rule of Civil Procedure 12(b)(6) dismissal is reviewed
de novo. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010); see
also In re Tracht Gut, LLC, 836 F.3d 1146, 1150 (9th Cir. 2016) (“A motion to
dismiss in an adversary bankruptcy proceeding is governed by Federal Rule of
Bankruptcy Procedure 7012(b), which incorporates Federal Rule of Civil
Procedure 12(b)-(i)”). However, underlying factual findings are reviewed for
clear error. In re Retz, 606 F.3d 1189, 1196 (9th Cir. 2010).
In a contemporaneously filed memorandum disposition in In re Capital
Options, LLC, No. 15-60054, we affirm the Bankruptcy Court’s dismissal of
Capital’s related adversary proceeding. Accordingly, as Capital has failed to
demonstrate an interest in G2, it has failed to show that Loomis, as a trustee of the
2
G2 funds, has any fiduciary duty to it. The Bankruptcy Court’s dismissal of
Capital’s claims against Loomis is AFFIRMED.
3