From Casetext: Smarter Legal Research

Kessler v. Nickless and Phillips P.C

United States Court of Appeals, Ninth Circuit
Apr 23, 2009
323 F. App'x 599 (9th Cir. 2009)


No. 07-55527.

Submitted April 13, 2009.

The panel unanimously finds this case suitable for decision without oral argument, and accordingly denies Appellants' request. See, Fed.R.App.P. 34(a)(2).

Filed April 23, 2009.

Amalia Kessler, Santa Monica, CA, pro se.

Sam Abbas, Santa Monica, CA, for Plaintiffs-Appellants

Nickless and Phillip PC, Fitchburg, MA, for Defendant-Appellee.

Appeal from the United States District Court for the Central District of California, S. James Otero, District Judge, Presiding. D.C. No. CV-06-00712-SJO.

Before: GRABER, GOULD, and BEA, Circuit Judges.


This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Amalia Kessler and Sam Abbas appeal pro se from the district court's judgment dismissing their diversity action alleging various tort law claims arising from an adversary proceeding in bankruptcy court. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam), and may affirm on any basis supported by the record, Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981). We affirm.

Appellant Abbas notified the court that appellant Kessler is deceased, and moves to be substituted as Kessler's successor in interest. We grant the unopposed motion. See Fed.R.Civ.P. 25(a)(1).

We dismiss Abbas as an independent party for lack of standing, because he has not alleged an invasion of his legally protected interests. See Angelucci v. Century Supper Club, 41 Cal.4th 160, 175, 59 Cal. Rptr.3d 142, 158 P.3d 718 (2007); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The action was properly dismissed because it was filed in direct violation of the automatic stay, and Appellants violated the bankruptcy court's order directing them to dismiss the action. See 11 U.S.C. § 362(a)(3) (providing that the filing of a bankruptcy petition stays any act to obtain possession or exercise control over property of the estate); see also Wong, 642 F.2d at 361-62 (explaining that a district court has authority under Fed.R.Civ.P. 12(b)(6) to dismiss sua sponte for failure to state a claim).

Appellants' remaining contentions are unpersuasive.

The Motion to Substitute is granted; all remaining motions are denied.


Summaries of

Kessler v. Nickless and Phillips P.C

United States Court of Appeals, Ninth Circuit
Apr 23, 2009
323 F. App'x 599 (9th Cir. 2009)
Case details for

Kessler v. Nickless and Phillips P.C

Case Details

Full title:Amalia KESSLER; et al., Plaintiffs-Appellants, v. NICKLESS AND PHILLIPS…

Court:United States Court of Appeals, Ninth Circuit

Date published: Apr 23, 2009


323 F. App'x 599 (9th Cir. 2009)

Citing Cases

Stephens v. Moore

Rickerson v. City of Mexico, 58 Mo. 61; Ellington v. Crockett, 13 Mo. 72; Wells v. Moore, 49 Mo. 229; 23 Cyc.…

McKinney v. Singh

This tends to be confirmed by decisions by and within the Ninth Circuit that permit a successor in interest…