Holdner v. Kreitzberg

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WILLIAM F. HOLDNER,

Appellant,

v. Case No. 3:20-cv-00307-MO

RICHARD A. KREITZBERG; STEVEN OPINION AND ORDER

KREITZBERG; AMY E. MITCHELL; and

JUSTIN D. LEONARD,

Appellees.

MOSMAN, J.,

The case before me appears on appeal from a proceeding in the U.S. Bankruptcy Court of

Oregon. Notice of Appeal [ECF 1]. For the reasons explained below, the judgment of the

Bankruptcy Court is AFFIRMED.

PROCEDURAL HISTORY

Appellant, Mr. Holdner, first filed the complaint underlying this appeal in this court.

Compl. [ECF 1], Holdner v. Kreitzberg et al., No. 3:18-cv-1054-AC, (D. Or. June 15, 2018)

(“District Court Case”). He asserted four claims for relief: Misrepresentation in the Purchase of

Shares, Breach of Contract, Breach of Fiduciary Duty (Kreitzberg Defendants), and Breach of

Fiduciary Duty (Ms. Mitchell & Mr. Leonard). Id. at 11-13. Magistrate Judge John V. Acosta

issued a Findings and Recommendation (“F&R”), in which he recommended that Mr. Holdner’s

claims for misrepresentation, breach of contract, and breach of fiduciary duty (Mitchell &

Leonard) be referred to the bankruptcy court and that his claim for breach of fiduciary duty

against the Kreitzberg Defendants be dismissed. District Court Case, F&R [ECF 24] at 2. I

adopted Judge Acosta’s F&R in full and referred Mr. Holdner’s claims to the bankruptcy court.

District Court Case, Order of Referral [ECF 27].

Mr. Holdner filed a virtually identical complaint in Bankruptcy Court, in which he

renewed all four claims for relief. First Am. Compl. [ECF 16] at 12-14, Holdner v. Kreitzberg et

al., Adv. Pro. No. 19-3028-tmb (Bankr. D. Or. May 13, 2019) (“Adversary Proceeding”).

Defendants filed a Motion to Dismiss each of Mr. Holdner’s claims. Adversary Proceeding, Mot.

to Dismiss [ECF 19]. Bankruptcy Judge Trish M. Brown ruled on that motion in her Opinion &

Report. Adversary Proceeding, [ECF 52] at 10-19. She issued dispositive rulings on two of those

claims: misrepresentation in the purchase of shares (Claim One) and breach of fiduciary duties

(estate professionals) (Claim Four). Id. at 11-15, 18-19.

On the other two claims, for breach of contract (Claim Two) and breach of fiduciary

duties (Kreitzberg Defendants) (Claim Three), Judge Brown issued recommendations to this

court because she found that both claims fell outside her jurisdiction as the Bankruptcy Court. Id.

at 15-18. She recommended that this court withdraw its reference of both claims pursuant to

28 U.S.C. § 157(d) and L-R 2100-4. Id. On Claim Two, she recommended that this court enter

judgment in favor of the Defendants because Mr. Holdner lacks standing to bring a claim for

breach of contract, as there is no record that he entered into a contract with these defendants. Id. I

adopted her recommendation and dismissed Mr. Holdner’s claims for breach of contract and

breach of fiduciary duty. District Court Case, Opinion and Order, [ECF 36].

Meanwhile, Mr. Holdner appealed Judge Brown’s ruling to the Ninth Circuit Court of

Appeals. See Notice of Appeal [ECF 1] at 1. The Ninth Circuit transferred the appeal to this

court because Judge Brown’s ruling was not a final judgment, as it did not dispose of the case

and was therefore an interlocutory order. Id. at 1-2. Given Judge Brown’s referral to the District

Court, the Ninth Circuit found that any ruling it made could result in inconsistent results. Id. at 2.

Mr. Holdner then filed a Motion to Certify a Class [ECF 3] and his appellate brief in this court.

App. Br. [ECF 5]. I denied his Motion to Certify [ECF 8] and now address his appeal on the

merits.

LEGAL STANDARD

28 U.S.C. § 158(a) grants U.S. District Courts jurisdiction over appeals from final

judgments and some interlocutory orders entered by a bankruptcy court in a case or proceeding

that has been referred pursuant to 28 U.S.C. § 157. When sitting in the position of an appeals

court over a bankruptcy proceeding, the district court applies a “clearly erroneous” standard to

any findings of fact made by the bankruptcy judge and reviews any conclusions of law de novo.

In re Daniels-Head & Associates, 819 F.2d 914, 919 (9th Cir. 1987).

DISCUSSION

Mr. Holdner has appealed from Judge Brown’s final ruling on the motion to dismiss

discussed above, but his appeal also assigns error to several interlocutory orders that preceded

that ruling. See generally App. Br. [5]. Judge Brown’s ruling had the effect of dismissing two of

Mr. Holdner’s claims: misrepresentation in the purchase of shares and breach of fiduciary duty.

Adversary Proceeding, Opinion & Report [ECF 52] at 11-15, 18-19. However, Mr. Holdner also

assigns error to Judge Brown’s denial of four procedural motions he brought below: (1) a motion

to classify his case as a contested shareholder proceeding rather than an adversary proceeding,

(2) a motion for certification of a class, (3) a discovery motion, and (4) a motion to convert the

Chapter 11 proceeding to a Chapter 7 proceeding. App. Br. [5] at 4. The majority of Mr.

Holdner’s argument focuses on the denial of his motion to certify a class. Id. at 2-3; Reply Br.

[ECF 11] at 2. The relief he seeks, however, is to have this court remand the case to Judge

Brown with instructions to convert it to a contested shareholder proceeding or, in the alternative,

convert it to a Chapter 7 proceeding. App. Br. [5] at 6.

Procedurally, Mr. Holdner’s appeal presents something of a difficulty. He appeals from a

final judgment, which dismissed two of his claims, but he seeks relief that would not be granted

to him even if I were to reverse Judge Brown’s disposition of the motion to dismiss. The only

effect of such a ruling on my part would be to remand the case for consideration of those two

claims on their merits. It would have not have the effect of converting Mr. Holdner’s case in any

way. Even more difficult is Mr. Holdner’s lack of argument relating to the dismissal of his

claims. In these fundamental ways, Mr. Holdner’s appeal is arguably not properly presented.

But Mr. Holdner is a pro se litigant, and some procedural deficiencies may be

overlooked. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988) (holding that

“pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance

of technical procedural requirements” and that pro se pleadings are liberally construed).

However, in this case, the procedural deficiencies preclude review on the merits. This is true for

two reasons. First, none of the interlocutory orders that Mr. Holdner appeals from were entered

as part of the Adversary Proceeding. At least some of these orders—likely all—were entered in

the underlying Bankruptcy Proceeding, which was not referred by this court under 28 USC § 157

and over which I have no appellate jurisdiction. See Orders [ECF 285, 341], In re Data Systems,

Inc. (Bankr. D. Or. Feb. 11, 2016) (“Bankruptcy Proceeding”)'; 28 USC § 158(a). I therefore

cannot review Mr. Holdner’s appeal from those orders, and I DISMISS his appeal as it relates to

those matters.

Second, Mr. Holdner’s failure to raise any arguments relating to the merits of Judge

Brown’s dismissal of his claims in the adversary proceeding renders it impossible for me to

understand the basis of that claim, and I therefore consider that claim to be abandoned. Acosta-

Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (holding that a litigant who fails to present an

argument in support of his claims abandons that argument); /n re Khalil, 379 B.R. 163, 177 (9th

Cir. Bankr. 2007) (holding that an appellate bankruptcy panel may decline to address claims

where no substantive argument is made); Fed. R. App. P. 28(a)(8)(a) (an appellate brief must

contain the “appellant's contentions and the reasons for them, with citations to the authorities and

parts of the record on which the appellant relies.”). Because Mr. Holdner has provided me no

basis to review his claims, I decline to address them and AFFIRM Judge Brown’s ruling.

CONCLUSION

I] AFFIRM Judge Brown’s judgment and DISMISS with prejudice Mr. Holdner’s appeal.

IT IS SO ORDERED.

DATED this! 1th day of May, 2020.

MICHAEL W. MOSMAN

United States District Judge

The court was unable to locate any motions filed by Mr. Holdner seeking conversion to a

contested shareholder proceeding or conversion to Chapter 7. As he has not provided any

citations, the court proceeds on the understanding that these motions were also filed in the

Bankruptcy Proceeding, as they would be relevant to that matter and are not discussed in Judge

Brown’s Opinion & Report in the Adversary Proceeding.

5 — OPINION AND ORDER