J-S07032-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF T.A.T., A        :   IN THE SUPERIOR COURT OF
MINOR                               :        PENNSYLVANIA
                                    :
                                    :
                                    :
APPEAL OF: J.O., MOTHER             :   No. 1939 EDA 2019

             Appeal from the Decree Entered June 13, 2019
         in the Court of Common Pleas of Philadelphia County
            Family Court at No(s): CP-51-AP-000605-2018

IN THE INTEREST OF T.A.T., A        :   IN THE SUPERIOR COURT OF
MINOR                               :        PENNSYLVANIA
                                    :
                                    :
                                    :
APPEAL OF: J.O., MOTHER             :   No. 1940 EDA 2019

             Appeal from the Order Entered June 13, 2019
         in the Court of Common Pleas of Philadelphia County
           Family Court at No(s): CP-51-DP-0003044-2017

IN THE INTEREST OF: T.B.T., A       :   IN THE SUPERIOR COURT OF
MINOR                               :        PENNSYLVANIA
                                    :
                                    :
                                    :
APPEAL OF: J.O., MOTHER             :   No. 1941 EDA 2019

             Appeal from the Decree Entered June 13, 2019
         in the Court of Common Pleas of Philadelphia County
           Family Court at No(s): CP-51-AP-0000603-2019

IN THE INTEREST OF: T.B.T., A       :   IN THE SUPERIOR COURT OF
MINOR                               :        PENNSYLVANIA
                                    :
                                    :
                                    :
APPEAL OF: J.O., MOTHER             :   No. 1942 EDA 2019
J-S07032-20

                 Appeal from the Order Entered June 13, 2019
             in the Court of Common Pleas of Philadelphia County
               Family Court at No(s): CP-51-DP-0002127-2016

    IN THE INTEREST OF: E.A.T., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
                                               :
    APPEAL OF: J.O., MOTHER                    :   No. 1943 EDA 2019

                 Appeal from the Decree Entered June 13, 2019
             in the Court of Common Pleas of Philadelphia County
               Family Court at No(s): CP-51-AP-0000604-2019

    IN THE INTEREST OF: E.A.T., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
                                               :
    APPEAL OF: J.O., MOTHER                    :   No. 1944 EDA 2019

                 Appeal from the Order Entered June 13, 2019
             in the Court of Common Pleas of Philadelphia County
               Family Court at No(s): CP-51-DP-0000430-2017

BEFORE:      NICHOLS, J., KING, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                             Filed: April 30, 2020

        J.O. (Mother) appeals from the decrees entered June 13, 2019, which

terminated involuntarily her parental rights to her children, T.B.T., a male

born in May 2013, E.A.T., a female born in August 2015, and T.A.T., a male

____________________________________________

*   Retired Senior Judge assigned to the Superior Court.

                                           -2-
J-S07032-20

born in April 2017 (collectively, Children).1             Mother also appeals from the

orders entered that same day, changing Children’s permanent placement

goals from return to parent or guardian to adoption. We affirm.

       The record reveals that the Philadelphia Department of Human

Services (DHS) has a lengthy history of involvement with this family. DHS

obtained an order of protective custody (OPC) for T.B.T. on September 26,

2016, based on allegations that Mother lacked suitable housing. However,

the trial court lifted the OPC on September 28, 2016, instructing that DHS

should obtain a new OPC once it learned of T.B.T.’s whereabouts. The next

action in this case took place on February 17, 2017, when DHS filed motions

to   compel      Mother’s    cooperation       in   its   general   protective   services

investigation.    DHS averred that it received allegations that Mother struck

one of the Children, that the family’s whereabouts were unknown, and that it

had been unable to complete its investigation due to Mother’s lack of

cooperation. The court entered an order discharging the motion on February

27, 2017.

       Finally, DHS obtained protective custody of Children on or about

November 14, 2017.2 In its applications for protective custody, DHS averred
____________________________________________

1 The trial court entered separate decrees in which it terminated involuntarily
the parental rights of T.T., who is the father of T.B.T. and E.A.T., and the
putative father of T.A.T.      The court also entered a separate decree
terminating involuntarily the parental rights of any unknown father that
T.A.T. may have. Neither T.T., nor any unknown father, appealed the
termination of his parental rights.

                                           -3-
J-S07032-20

that one of the Children3 had suffered two black eyes but that Mother

refused to permit a doctor to examine him. DHS further averred that Mother

had been verbally aggressive toward DHS and hospital staff. The trial court

entered shelter care orders on November 15, 2017, and orders adjudicating

Children dependent on November 28, 2017.

      Following the adjudications of dependency, Mother made little, if any,

progress toward achieving reunification with Children.     As detailed below,

Mother failed to comply with the objectives in her Single Case Plan (SCP)

and exhibited hostility toward Community Umbrella Agency (CUA) case

managers.     DHS filed its petitions to terminate involuntarily Mother’s

parental rights to Children on July 24, 2018, along with petitions to change

Children’s permanent placement goals from return to parent or guardian to

adoption.   DHS filed amended termination and goal change petitions on

January 30, 2019.

2 In the various pleadings filed in this matter, DHS indicates that it intended
to obtain an OPC for T.A.T. on November 13, 2017, but that it obtained an
OPC for T.B.T. in error. DHS indicates that it removed T.A.T. on November
13, 2017, but that it did not obtain an OPC for T.A.T. until November 14,
2017, and that it did not remove T.B.T. until November 14, 2017, despite
obtaining an OPC for him on November 13, 2017.

3 The record is inconsistent as to which of the Children suffered the injury.
The applications for emergency protective custody for T.B.T. and T.A.T.
indicate that T.B.T. suffered the injury.     However, the application for
emergency protective custody for E.A.T., as well as the dependency petitions
and the subsequent pleadings for all three of the Children, indicate that
T.A.T. suffered the injury.

                                     -4-
J-S07032-20

       The trial court held a hearing on the petitions on June 13, 2019, at the

conclusion of which it announced that it would terminate Mother’s parental

rights and change Children’s goals to adoption. The court entered decrees

and orders memorializing its decision on June 13, 2019. Mother timely filed

notices of appeal on July 10, 2019, along with concise statements of errors

complained of on appeal.

       Mother now raises the following claims for our review.

       1. Whether the trial court’s decision to involuntarily terminate
       [Mother’s] parental rights to [Children] was not supported by
       clear and convincing evidence warranting such determination[.]

       2. Whether the trial court’s decision to change [C]hildren’s
       permanency goal from reunification with the parent to adoption
       was not supported by clear and convincing evidence
       demonstrating that such decision would best protect [C]hildren’s
       needs and welfare and be in [C]hild[ren’s] best interests[.]

Mother’s Brief at 5 (trial court answers omitted).4

____________________________________________

4  While Mother filed notices of appeal from the trial court’s goal change
orders, and while she purports to challenge the orders in her statement of
questions involved, she does not develop her goal change claim in the
argument section of her brief with citation to relevant legal authority. Thus,
Mother has waived this claim. See In re M.Z.T.M.W., 163 A.3d 462, 465
(Pa. Super. 2017) (“[T]his Court will not review a claim unless it is
developed in the argument section of an appellant’s brief, and supported by
citations to relevant authority.”). Further, even if Mother had preserved her
goal change claim for our review, our decision to affirm the decrees
terminating her parental rights would render that claim moot. See In the
Interest of D.R.-W., ___ A.3d ___, 2020 WL 465686 at *9 (Pa. Super.
2020) (“[E]ven if Father had not waived his goal change claim, it would be
moot in light of our decision to affirm the court’s termination decrees.”). We
therefore affirm the June 13, 2019 goal change orders.

                                           -5-
J-S07032-20

     We focus our analysis on the decrees terminating involuntarily

Mother’s parental rights to Children, which we review in accordance with the

following standard.

     The standard of review in termination of parental rights cases
     requires appellate courts to accept the findings of fact and
     credibility determinations of the trial court if they are supported
     by the record. If the factual findings are supported, appellate
     courts review to determine if the trial court made an error of law
     or abused its discretion. A decision may be reversed for an
     abuse of discretion only upon demonstration of manifest
     unreasonableness, partiality, prejudice, bias, or ill-will. The trial
     court’s decision, however, should not be reversed merely
     because the record would support a different result. We have
     previously emphasized our deference to trial courts that often
     have first-hand observations of the parties spanning multiple
     hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

     Section 2511 of the Adoption Act governs involuntary termination of

parental rights. See 23 Pa.C.S. § 2511. It requires a bifurcated analysis.

     Initially, the focus is on the conduct of the parent. The party
     seeking termination must prove by clear and convincing
     evidence that the parent’s conduct satisfies the statutory
     grounds for termination delineated in [subs]ection 2511(a).
     Only if the court determines that the parent’s conduct warrants
     termination of his or her parental rights does the court engage in
     the second part of the analysis pursuant to [subs]ection
     2511(b): determination of the needs and welfare of the child
     under the standard of best interests of the child.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

     In the instant matter, the trial court terminated Mother’s parental

rights pursuant to subsections 2511(a)(1), (2), (5), (8), and (b). We need

                                     -6-
J-S07032-20

only agree with the court as to any one subsection of 2511(a), in addition to

subsection 2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004) (en banc).     Here, we analyze the court’s decision pursuant to

subsections 2511(a)(2) and (b), which provide as follows.

     (a) General rule.--The rights of a parent in regard to a child
     may be terminated after a petition filed on any of the following
     grounds:

                                     ***

           (2) The repeated and continued incapacity, abuse, neglect
           or refusal of the parent has caused the child to be without
           essential parental care, control or subsistence necessary
           for his physical or mental well-being and the conditions
           and causes of the incapacity, abuse, neglect or refusal
           cannot or will not be remedied by the parent.

                                     ***

     (b) Other considerations.--The court in terminating the rights
     of a parent shall give primary consideration to the
     developmental, physical and emotional needs and welfare of the
     child. The rights of a parent shall not be terminated solely on
     the basis of environmental factors such as inadequate housing,
     furnishings, income, clothing and medical care if found to be
     beyond the control of the parent. With respect to any petition
     filed pursuant to subsection (a)(1), (6) or (8), the court shall not
     consider any efforts by the parent to remedy the conditions
     described therein which are first initiated subsequent to the
     giving of notice of the filing of the petition.

                                     ***

23 Pa.C.S. § 2511(a)(2), (b).

     We begin by considering whether the trial court committed an abuse of

discretion by terminating Mother’s rights pursuant to subsection 2511(a)(2).

                                    -7-
J-S07032-20

      In order to terminate parental rights pursuant to 23 Pa.C.S.[]
      § 2511(a)(2), the following three elements must be met: (1)
      repeated and continued incapacity, abuse, neglect or refusal; (2)
      such incapacity, abuse, neglect or refusal has caused the child to
      be without essential parental care, control or subsistence
      necessary for his physical or mental well-being; and (3) the
      causes of the incapacity, abuse, neglect or refusal cannot or will
      not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted).     Critically, “[t]he grounds for termination due to parental

incapacity   that   cannot   be   remedied   are   not   limited   to   affirmative

misconduct. To the contrary, those grounds may include acts of refusal as

well as incapacity to perform parental duties.” In re A.L.D., 797 A.2d 326,

337 (Pa. Super. 2002) (citations omitted).

      In its opinion, the trial court found that Mother remained incapable of

parenting Children and failed to remedy the causes of their placement in

foster care. Trial Court Opinion, 9/24/2019, at 4-6. The court emphasized

Mother’s failure to complete her SCP objectives and particularly her failure to

address her mental health issues. Id.

      Mother challenges the trial court’s findings, insisting that the evidence

DHS presented during the hearing “did not establish any substantial parental

objective plan that [M]other failed to meet or could not remedy within a

reasonable period of time to prohibit reunification.” Mother’s Brief at 17, 19.

She emphasizes that DHS did not remove Children from her care for over a

year after it became involved with the family and that it filed its termination

petitions less than six months after she received her initial SCP. Id. at 20,

                                      -8-
J-S07032-20

23. Mother contends that DHS and CUA rushed to terminate her rights and

failed to provide her with the assistance necessary to achieve reunification.

Id. at 20-22, 24-25. She directs our attention to her testimony during the

hearing, which she argues demonstrates that she was capable of meeting

Children’s needs. Id. at 21-25.

       Our review of the record supports the trial court’s decision. During the

hearing, DHS presented the testimony of CUA case management supervisor

Sonya Jamison, CUA case manager Malia Gadson,5 and CUA case manager

Symone Brown, all of whom testified regarding Mother’s lack of compliance

with her SCP objectives. Mother’s objectives included attending a domestic

violence program, attending drug and alcohol and mental health treatment,

submitting to random drug screens at the Clinical Evaluation Unit, obtaining

housing and employment, and attending visitation with Children.           N.T.,

6/13/2019, at 7, 28-29, 44.          However, Mother did not attend a domestic

violence program, did not attend mental health and drug and alcohol

treatment, did not submit to random drug screens, and did not provide proof

of employment.6 Id. at 7-10, 23-25, 29-30, 39-40, 44-45, 54.

____________________________________________

5Gadson’s first name appears as “Malia” in the transcript of the hearing but
as “Melea” elsewhere in the record.

6 Jamison added that Mother received a referral for a parenting capacity
evaluation but failed to comply, and that she refused to sign consent forms.
N.T., 6/13/2019, at 30, 40.

                                           -9-
J-S07032-20

       Mother also failed to obtain appropriate housing. At the time DHS first

became involved with Mother, she was living with her sister.         Id. at 7.

Later, Mother began living with her grandfather.        Id. at 45.    Jamison

testified that Mother became “very combative” when CUA attempted to visit

the home and insisted that the case manager not come inside. Id. at 38.

Similarly, Brown testified that she visited Mother’s home once, which “went

fine,” but that Mother was uncooperative and hostile during her subsequent

attempt to perform a “pop-up” visit at the home. Id. at 48.

       Perhaps most striking, however, was Mother’s failure to attend

visitation with Children.       Between November 2017,7 and May 24, 2018,

Mother attended only 4 of 66 possible visits. Id. at 10. Between May 25,

2018, and October 24, 2018, Mother attended only 2 of 22 possible visits.

Id. at 30-31. The record does not reveal the number of visits that Mother

attended between October 2018 and February 2019.              However, from

February 27, 2019, until the time of the hearing on June 13, 2019, Mother

attended only 1 of 16 possible visits. Id. at 44-45, 55. While Mother did

have additional contact with Children via telephone, FaceTime, and/or

Skype, it was unclear how often this type of contact occurred. Id. at 24, 41.

Given Children’s young ages, this type of contact is not a substitute for in-
____________________________________________

7 Gadson listed the number of visits Mother attended starting in February
2017, although Children remained in Mother’s care until November 2017. It
appears that Gadson used February 18, 2017 as a start date because CUA
assigned her to Mother’s case at that time. See N.T., 6/13/2019, at 6, 10.

                                          - 10 -
J-S07032-20

person visits that were available to Mother.        Children’s foster mother

testified that Mother spoke to Children infrequently. Id. at 66. When asked

if Mother spoke to Children on a weekly basis, the foster mother responded,

“Maybe, sometimes, depending on who is in.” Id.

      Finally, the record demonstrates that Mother has been uncooperative

and even overtly hostile to CUA.     Gadson described an incident that took

place during a visit on February 16, 2018, during which Mother began yelling

at Children and using profanity. Id. at 10-12. She recalled,

      I tried to redirect her. I guess she didn’t like what I was saying.
      She got irate and was using profanity towards me. So as I
      proceeded to leave the conference room where they was [sic]
      having the visit she got up and walked towards me, and that’s
      when the agency had contacted police.

                                     ***

             THE COURT: What kind of language did she use?

            THE WITNESS: Called me B and MF’ers and just using that
      language, and then she said if I terminate her rights she was
      going to terminate my life.

Id. at 12.

      CUA removed Gadson from the case and assigned a different case

manager to Mother.     Id. at 13.   The trial court also entered a protective

order on Gadson’s behalf.     Dependency Court Protective Order (T.B.T.),

2/28/2018.    Apparently, Mother’s interactions with her new case manager

were not much better, as the court entered a protective order on his behalf

                                    - 11 -
J-S07032-20

as well.    N.T., 6/13/2019, at 31-32; Dependency Court Protective Order

(T.B.T.), 10/2/2018.

       Mother’s belligerent behavior continued during the hearing on June 13,

2019. She interrupted the proceedings repeatedly, to the point where the

trial court removed her from the courtroom.        N.T., 6/13/2019, at 12-21.

Mother later returned to the courtroom to testify. Id. at 80-96. However,

at the conclusion of the hearing, when legal counsel for T.B.T. and E.A.T.8

reported that his clients wanted their foster mother to adopt them, Mother

became belligerent once again, resulting in the court’s removing her for a

second time. Id. at 98-99.

       Accordingly, the record demonstrates that Mother has made little, if

any, effort to comply with her SCP objectives and achieve reunification with

Children. She has displayed a lack of interest in Children and their welfare

by failing to attend visitation consistently, and has been uncooperative and

____________________________________________

8 Counsel explained that the trial court did not appoint him to represent
T.A.T., who was only two years old at the time. N.T., 6/13/2019, at 69.
See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018) (holding that where a
“child is very young and pre-verbal, there can be no conflict between the
child’s legal interests and his or her best interests; as such, the mandate of
Section 2313(a) of the Adoption Act that counsel be appointed ‘to represent
the child,’ 23 Pa.C.S. § 2313(a), is satisfied where the court has appointed
an attorney-guardian ad litem who represents the child’s best interests
during such proceedings.”). T.A.T. did have a separate guardian ad litem
during the hearing.

                                          - 12 -
J-S07032-20

hostile to CUA, the agency tasked with assisting her with reunification.9

Based on the record, DHS demonstrated that Mother has been incapable of

or has refused to provide Children with appropriate parental care, and that

she cannot or will not remedy her parental incapacity and/or refusal at any

point in the near future. As this Court has stated, “a child’s life cannot be

held in abeyance while a parent attempts to attain the maturity necessary to

assume parenting responsibilities. The court cannot and will not subordinate

indefinitely a child’s need for permanence and stability to a parent’s claims

of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d

502, 513 (Pa. Super. 2006). Thus, we conclude that the court did not abuse

its discretion by terminating involuntarily Mother’s parental rights to Children

pursuant to subsection 2511(a)(2).

       Next, we consider if the trial court abused its discretion by terminating

involuntarily Mother’s parental rights pursuant to subsection 2511(b).      We

apply the following analysis.

       S[ubs]ection 2511(b) focuses on whether termination of parental
       rights would best serve the developmental, physical, and
       emotional needs and welfare of the child. As this Court has
       explained, [subs]ection 2511(b) does not explicitly require a
____________________________________________

9 While Mother maintains that DHS and CUA failed to provide her with the
assistance necessary to achieve reunification, this argument is meritless.
Even accepting that DHS and CUA failed to provide Mother with reasonable
reunification efforts, our Supreme Court has held that reasonable
reunification efforts are not a prerequisite to the involuntary termination of
parental rights pursuant to subsection 2511(a)(2). In re D.C.D., 105 A.3d
662 (Pa. 2014).

                                          - 13 -
J-S07032-20

     bonding analysis and the term ‘bond’ is not defined in the
     Adoption Act. Case law, however, provides that analysis of the
     emotional bond, if any, between parent and child is a factor to
     be considered as part of our analysis.           While a parent’s
     emotional bond with his or her child is a major aspect of the
     subsection 2511(b) best-interest analysis, it is nonetheless only
     one of many factors to be considered by the court when
     determining what is in the best interest of the child.

           [I]n addition to a bond examination, the trial court
           can equally emphasize the safety needs of the child,
           and should also consider the intangibles, such as the
           love, comfort, security, and stability the child might
           have with the foster parent. Additionally, this Court
           stated that the trial court should consider the
           importance of continuity of relationships and whether
           any existing parent-child bond can be severed
           without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015)

(quotation marks and citations omitted).

     Here, the trial court concluded that terminating Mother’s parental

rights would not have a detrimental effect on Children and would be in their

best interests.   Trial Court Opinion, 9/24/2019, at 6-7.           The court

emphasized the testimony of the CUA witnesses, which demonstrated that

Children share a bond with their foster mother. Id. at 5-6. The court also

emphasized the report of legal counsel for T.B.T. and E.A.T., who stated that

his clients wanted their foster mother to adopt them. Id. at 5.

     Mother argues in response that DHS failed to present sufficient

evidence regarding the effect that terminating her parental rights would

have on Children. Mother’s Brief at 26-27. Specifically, Mother complains

that DHS failed to present expert testimony during the hearing. Id. at 26.

                                   - 14 -
J-S07032-20

She insists that this was a critical omission, because Children “have resided

with and known [her] all their lives” and because she has “raised and cared

for them since birth[.]” Id.

      Contrary to Mother’s assertions, the record reveals that she has failed

to provide for Children for a significant portion of their lives. At the time of

Children’s placement in foster care in November 2017, T.B.T. was four-and-

a-half years old, E.A.T. was two years old, and T.A.T. was six months old.

By the time of the hearing on June 13, 2019, T.B.T. was six years old, E.A.T.

was three-and-a-half years old, and T.A.T. was two years old.                    Thus,

proportional to their ages, Mother missed a significant portion of their lives.

Importantly, Mother had only minimal contact with Children following their

placement, due to her failure to attend visitation consistently.          The CUA

witnesses testified regarding 104 possible visits that Mother could have

attended. N.T., 6/13/2019, at 10, 30-31, 44-45, 55. Mother attended only

seven of those visits and engaged in an unspecified amount of phone contact

with Children.    Id. at 10, 24, 30-31, 41, 44-45, 55.       Given this dearth of

contact, the record confirms that Children do not share a meaningful bond

with Mother. See Matter of Adoption of M.A.B., 166 A.3d 434, 449 (Pa.

Super. 2017) (“[A] child develops a meaningful bond with a caretaker when

the   caretaker   provides   stability,   safety,   and   security   regularly    and

consistently to the child over an extended period of time.”).

                                      - 15 -
J-S07032-20

      To the extent Mother argues that the trial court could not terminate

her parental rights absent expert testimony addressing her relationship with

Children, this contention is contrary to our law.   This Court has explained

that trial courts may rely on the opinions of agency caseworkers when

conducting a subsection 2511(b) bonding analysis.      See In re Z.P., 994

A.2d 1108, 1121 (Pa. Super. 2010) (“When conducting a bonding analysis,

the court is not required to use expert testimony.       Social workers and

caseworkers can offer evaluations as well.”) (citations omitted).       Here,

Brown testified that she did not believe Children share a bond with Mother,

that terminating Mother’s rights would be in Children’s best interests, and

that Children would not experience harm as a result.     N.T., 6/13/2019, at

57-58.   She testified that Children are thriving and happy in their pre-

adoptive foster home, where they have resided since November 2017. Id.

at 56-57. Brown added that Children refer to their foster mother as “mom.”

Id. at 57; see T.S.M., 71 A.3d at 268 (“Common sense dictates that courts

considering termination must also consider whether the children are in a

pre-adoptive home and whether they have a bond with their foster

parents.”).   Accordingly, we conclude that the court did not abuse its

discretion by terminating involuntarily Mother’s parental rights to Children

pursuant to subsection 2511(b).

      Based on the foregoing analysis, we conclude that the trial court did

not abuse its discretion by terminating involuntarily Mother’s parental rights

                                    - 16 -
J-S07032-20

to Children and we affirm the court’s termination decrees. Because Mother

waived any challenge to the court’s goal change orders, and because any

such challenge would be moot due to our decision to affirm the termination

decrees, we affirm those orders as well.

     Decrees affirmed. Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/30/20

                                   - 17 -


                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

    RANDA ISKANDAR,
      Plaintiff,

         v.                                               Civil Action No. 14-721 (CKK)
    EMBASSY OF THE STATE OF KUWAIT,
      Defendant.

                                 MEMORANDUM OPINION
                                    (February 29, 2016)

        Plaintiff, who is represented by counsel, filed suit against her former employer, the

Embassy of the State of Kuwait, on April 24, 2014, alleging breach of contract as well as gender

discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e et seq. Presently before the Court is Plaintiff’s [18] Amended Motion

for Reconsideration of the Court’s ruling issued on May 28, 2015, dismissing without prejudice

Plaintiff’s Complaint. Upon consideration of the pleadings,1 the relevant legal authorities, and the

record as a whole, the Court, in an exercise of its discretion, shall GRANT Plaintiff’s [18]

Amended Motion for Reconsideration.

                                       I. BACKGROUND

        On April 24, 2014, Plaintiff filed a Complaint against Defendant, the Embassy of the State

of Kuwait (“Defendant” or “the Embassy”), alleging breach of contract as well as gender

discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e et seq. On July 17, 2014, Plaintiff filed an Affidavit of Proof of Service

1
 Plaintiff’s Amended Motion for Reconsideration (“Pl.’s Am. Mot.”), ECF No. [18]; Defendant’s
Opposition to Plaintiff’s Amended Motion for Reconsideration (“Def.’s Opp’n”), ECF No. [21];
Plaintiff’s Reply to Defendant’s Opposition (“Pl.’s Reply”), ECF No. [23].
showing that Plaintiff served the First Secretary of the Embassy of the State of Kuwait with the

Complaint and Summons on July 15, 2014. See Affidavit of Service, ECF No. [5]. As Defendant

did not timely file an Answer, Plaintiff filed a Motion for Entry of Default on September 17, 2014.

The following day, Defendant filed a Motion to Dismiss, arguing that Plaintiff’s Complaint should

be dismissed for failure to properly serve process, for lack of personal jurisdiction, and for failure

to state sufficient facts to establish the Court’s subject matter jurisdiction over Defendant.

       On May 28, 2015, the Court issued a Memorandum Opinion and Order, denying Plaintiff’s

Motion for Entry of Default and granting Defendant’s Motion to Dismiss. See Mem. Opinion and

Order (May 28, 2015), ECF Nos. [10], [11]. In its Memorandum Opinion, the Court found that

(1) Plaintiff failed to properly effect service on Defendant under the Foreign Sovereign Immunities

Act (“FSIA”), and (2) Plaintiff failed to allege in her Complaint a basis for the Court’s subject

matter jurisdiction over this action. See Mem. Opinion (May 28, 2015), ECF No [11], at 5-6.

       On June 23, 2015, Plaintiff filed her initial motion for reconsideration, requesting that the

Court vacate its Order issued on May 28, 2015 and allow Plaintiff to file an Amended Complaint

and obtain proper service thereof. See Pl.’s Mot. to Reconsider, ECF No. [12], at 1. In her one-

page Motion, Plaintiff’s counsel simply indicated that she had caused the Complaint to be

transmitted for service on the Government of Kuwait pursuant to the Hague Convention. See id.

Plaintiff’s counsel also indicated that her claims may be time-barred by the applicable statute of

limitations, and that Plaintiff will be unable to seek redress for her claims if her case is dismissed

pursuant to the Court’s Order issued on May 28, 2015. See id.

       On June 24, 2015, the Court issued a Memorandum Opinion and Order, denying Plaintiff’s

initial motion for reconsideration. See Mem. Opinion and Order (June 24, 2015), ECF Nos. [14],

[15]. As the Court explained in that Opinion, the exhibits attached to Plaintiff’s initial motion for

                                                  2
reconsideration suggested that Plaintiff made a renewed attempt to effect service, this time

pursuant to the Hague Convention, in February 2015—several months after Defendant filed its

Motion to Dismiss and several months prior to the Court ruling on Defendant’s Motion to Dismiss.

See Mem. Opinion (June 24, 2015), ECF No. [15], at 1-2. That information was never brought to

the Court’s attention by Plaintiff at any time prior to the Court ruling on Defendant’s Motion to

Dismiss on May 28, 2015. Id. at 2. Most importantly, Plaintiff did not provide any detail in her

initial motion as to how that alleged service complied with the Hague Convention requirements.

Id. Nor did Plaintiff discuss the Court’s primary ground for dismissing Plaintiff’s Complaint—

the Court’s lack of subject matter jurisdiction over the action. Id. Plaintiff’s initial motion also

sought leave to file an Amended Complaint, but Plaintiff’s counsel did not attach any proposed

amended complaint to her motion. Id. In light of the foregoing reasons, the Court denied without

prejudice Plaintiff’s initial motion to reconsider. Id.

        In denying the motion, the Court set out requirements for Plaintiff’s amended motion for

reconsideration, if Plaintiff elected to file such a motion:

        If Plaintiff does seek to reopen this final judgment, Plaintiff must file a motion
        pursuant to Federal Rule of Civil Procedure 59(e) or 60(b) with thorough briefing
        of the legal basis for reopening this matter pursuant to either rule. Plaintiff’s motion
        should also indicate why Plaintiff’s counsel did not notify the Court that she had
        made a renewed attempt to serve Defendant allegedly pursuant to the Hague
        Convention several months prior to the Court ruling on Defendant’s Motion to
        Dismiss for failure to properly serve Defendant as one of the grounds for dismissal.
        Plaintiff’s motion shall further indicate in detail how the service Plaintiff alleges to
        have effected on Defendant in February 2015 was in compliance with the specific
        service requirements of the Hague Convention. Plaintiff shall also address the
        Court’s subject matter jurisdiction over the action. Finally, Plaintiff’s present
        Motion simply indicates that “Plaintiff’s claims may be time-barred by the statute
        of limitations,” id. ¶ 4. If Plaintiff chooses to file a motion pursuant to Federal Rule
        of Civil Procedure 59(e) or 60(b), Plaintiff shall indicate when the statute of
        limitations expires and the legal basis for Plaintiff’s calculation.

Id. at 2-3.

                                                   3
       Rather than immediately filing a Rule 60(b) motion, Plaintiff’s counsel on June 27, 2015

filed a Notice of Appeal to the U.S. Court of Appeals for the District of Columbia Circuit. See

Notice of Appeal to DC Circuit, ECF No. [16].

       Four days later, on July 1, 2015, Plaintiff’s counsel filed the Amended Motion for

Reconsideration presently before the Court. See Pl.’s Amended Mot., ECF No. [18]. Plaintiff’s

Amended Motion for Reconsideration adheres to the requirements set forth in the Court’s Opinion

issued on June 24, 2015. Namely, the amended motion (1) provides briefing as to why the Court

should reopen this matter pursuant to Rule 60(b); (2) explains why Plaintiff’s counsel did not notify

the Court that she had made a renewed attempt to serve Defendant; (3) indicates how the service

alleged to have effected on Defendant was in compliance with the service requirements of the

Hague Convention;2 (4) requests that the Court grant Plaintiff leave to file an amended complaint,

attached to Plaintiff’s motion, which properly addresses the Court’s subject matter jurisdiction

over this action; and (5) indicates when the applicable statute of limitations in this case expired.

       However, because Plaintiff’s counsel had already filed a Notice of Appeal, this Court

lacked jurisdiction to issue a decision on Plaintiff’s Amended Motion for Reconsideration.

Accordingly, this Court issued a Minute Order on July 7, 2015, holding in abeyance Plaintiff’s

Amended Motion for Reconsideration until the Court of Appeals acted on Plaintiff’s appeal. See

Minute Order (July 7, 2015).

       On July 28, 2015, Plaintiff retained new counsel to represent her in connection with the

aforesaid appeal, as well as the motion for reconsideration pending in this Court. See Pl.’s Consent

2
 Plaintiff concedes in her Reply brief that in February 2015, she did not properly affect service
under the FSIA. Accordingly, Plaintiff’s Amended Motion for Reconsideration requests that she
be provided another opportunity to serve Defendant. See Pl.’s Reply at 7 n.1.
                                                 4
Motion for Substitution of Counsel, ECF No. [22], at 1.

         On January 4, 2016, the Court of Appeals granted Plaintiff’s motion for a voluntary

dismissal, thereby allowing this Court to consider Plaintiff’s Amended Motion for

Reconsideration. See Order of USCA, ECF No. [20]. On January 21, 2016, Defendant filed its

Memorandum in Opposition to Plaintiff’s Amended Motion for Reconsideration. See Def.’s

Opp’n, ECF No. [21]. On January 28, 2016, Plaintiff, represented by her new counsel, filed her

Reply.     See Pl.’s Reply, ECF No. [23].         Accordingly, Plaintiff’s Amended Motion for

Reconsideration is ripe for the Court’s review.

                                    II. LEGAL STANDARD

         Plaintiff requests that the Court grant her Amended Motion for Reconsideration under

Federal Rule of Civil Procedure 60(b). See Pl.’s Am. Mot. at 2. Rule 60(b) provides that, on

motion and just terms, the Court may relieve a party or its legal representative from a final

judgment, order, or proceeding for the following reasons:

            1) mistake, inadvertence, surprise, or excusable neglect;
            2) newly discovered evidence that, with reasonable diligence, could not have been
               discovered in time to move for a new trial under Rule 59(b);
            3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
               misconduct by an opposing party;
            4) the judgment is void;
            5) the judgment has been satisfied, released or discharged; it is based on an earlier
               judgment that has been reversed or vacated; or applying it prospectively is no longer
               equitable; or
            6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

         The Rule “was intended to preserve ‘the delicate balance between the sanctity of final

judgments ... and the incessant command of the court's conscience that justice be done in light of

all the facts.’ ” Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)
                                                  5
(quoting Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970)). As the D.C.

Circuit has emphasized, Rule 60(b) “gives the district judge broad latitude to relieve a party from

a judgment,” Richardson v. Nat'l R.R. Passenger Corp., 49 F.3d 760, 765 (D.C. Cir. 1995), but

“should be only sparingly used,” Good Luck Nursing Home, 636 F.2d at 577. The party seeking

relief under Rule 60(b) bears the burden of showing that he or she is entitled to the relief. Norris

v. Salazar, 277 F.R.D. 22, 25 (D.D.C. 2011). Common to all grounds for relief under Rule 60(b)

are the requirements that the motion be timely, see Fed. R. Civ. P. 60(c)(1), and that the movant

“demonstrate a meritorious claim or defense” to the motion upon which the district court

previously dismissed the complaint, see Lepkowski v. U.S. Dep't of Treasury, 804 F.2d 1310, 1314

(D.C. Cir. 1986).

                                       III. DISCUSSION

       Plaintiff, through her Amended Motion for Reconsideration, requests that the Court

reconsider its ruling of May 28, 2015 and grant Plaintiff leave to amend her Complaint and to

attempt service. Pl.’s Am. Mot. at 1. Although Plaintiff’s Amended Motion seeks relief under

Rule 60(b) generally, it specifically cites language from two provisions, Rule 60(b)(1) and Rule

60(b)(6). See id. at 2 (“A court may grant relief from a final order due to among other things,

mistake, inadvertence, surprise, excusable neglect, or any other reason that justifies relief.”).

Because the Court finds that relief is warranted under the “excusable neglect” prong of Rule

60(b)(1), the Court need not examine whether relief is also warranted under Rule 60(b)(6).

           A. Relief is Warranted under Rule 60(b)(1).

       Rule 60(b)(1) provides, “the court may relieve a party or its legal representative from a

final judgment, order, or proceeding” because of “mistake, inadvertence, surprise, or excusable

neglect.” Fed. R. Civ. P. 60(b)(1). The Supreme Court has set out four factors for determining

                                                 6
what kind of neglect may constitute “excusable neglect.” Pioneer Inv. Servs. Co. v. Brunswick

Associates Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). These factors

are: “(1) the danger of prejudice to the [opposing party], (2) the length of delay and its potential

impact on judicial proceedings, (3) the reason for the delay, including whether it was within the

reasonable control of the movant, and (4) whether the movant acted in good faith.” In re Vitamins

Antitrust Class Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003) (citing Pioneer, 507 U.S. at 395,

113 S.Ct. 1489). The inquiry into whether a party’s action constitutes excusable neglect “is at

bottom an equitable one, taking account of all relevant circumstances surrounding the party’s

omission.” Pioneer, 507 U.S. at 395, 113 S.Ct. 1489.

       Here, on balance, these factors favor reinstating this case pursuant to Rule 60(b)(1).

                       1. Danger of Prejudice to Defendant

       As to the first factor, Defendant will not be prejudiced if the Court grants Plaintiff’s

Amended Motion. Defendant asserts that permitting another service attempt would prejudice the

Embassy because seven key witnesses, including Dr. Abdullah Alwetaib—the employee who

allegedly committed the misconduct that Plaintiff complains of—are no longer available. See

Def.’s Opp’n at 8. An affidavit attached to Defendant’s Opposition brief indicates that Dr.

Alweitaib’s tour of service in Washington, D.C. has ended. See Exhibit 2 to Def.’s Opp’n.

However, it is not clear why Dr. Alwetaib is otherwise unavailable or unable to participate in this

litigation. Defendant does not suggest that Dr. Alwetaib is unreachable, or otherwise unavailable

to help Defendant investigate and defend this case. Defendant also does not identify who the other

unavailable witnesses are, state why they cannot be compelled to participate in this litigation, or

describe how their absence would prejudice Defendant in its efforts to defend against Plaintiff’s

                                                 7
claims.3

        Moreover, as Plaintiff notes in her Reply brief, Defendant has been aware of this case since

2014, and, to date, has been an active participant. See Pl.’s Reply at 5. Defendant will not be

subjected to any unfair surprise or prejudice if Plaintiff’s Amended Motion is granted, and Plaintiff

is permitted the opportunity to properly effect service on Defendant. See id.

        Accordingly, the Court finds that Defendant will not be prejudiced if the Court grants

Plaintiff’s Amended Motion.

                        2. Length of delay and Its Potential Impact on Judicial Proceedings

        Turning to the second factor—the length of delay and its potential impact on judicial

proceedings—the Court finds that the delays resulting from former counsel’s errors have had an

“adverse impact on efficient court administration”; however, the delays have not impacted these

proceedings so significantly that they should preclude Plaintiff from having the opportunity to

litigate her case on the merits.

        It is clear from the procedural posture that Plaintiff’s former counsel made a plethora of

missteps that have delayed this case: (1) in July 2014, counsel attempted service on Defendant

under the wrong provision of the FSIA; (2) counsel waited until June 2015—after the Court had

3
  The case cited by Defendant in support of its assertion of prejudice is entirely inapposite to the
facts of this case. In that case, Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838 (D.C.
Cir. 1982), the plaintiff, an unsuccessful bidder on a government contract, delayed three years
before challenging the award of the contract at issue. See id. at 844. During those three years, the
original contracting officer died. See id. at 845. In determining whether any prejudice existed to
support a laches defense, the district court found that the death of the contract officer seriously
prejudiced the government’s ability to combat the plaintiff’s charge that the award of the disputed
contract was arbitrary and capricious. See id. The D.C. Circuit reversed the district court’s
decision, finding that any prejudice to the government had been cured by the existence of
documentation that had been preserved. See id. Accordingly, Gull Airborne does nothing to
support Defendant’s assertion that it would be prejudiced if Plaintiff were permitted the
opportunity to file an amended complaint and to effect service.
                                                   8
issued an Order dismissing her client’s case—to inform the Court that counsel had attempted

service on Defendant in February 2015; (3) counsel failed to allege in the initial Complaint a basis

for the Court’s subject matter jurisdiction over this action, which resulted in the Court’s dismissal

of Plaintiff’s case; (4) counsel filed a motion for reconsideration in July 2015 requesting that the

Court reopen the case without setting forth any legal basis for vacating the Court’s judgment; and

(5) when afforded the opportunity to file an amended motion for reconsideration, counsel

immediately filed a Notice of Appeal, which resulted in a stay of the present motion until January

2016. Altogether, the missteps by Plaintiff’s former counsel delayed this case by a number of

months, and the delays have had an “adverse impact on efficient court administration.” Pioneer,

507 U.S. at 385, 113 S.Ct. 1493.

       Nevertheless, the delays have not impacted the proceedings in such a significant manner

that they should foreclose Plaintiff from having the opportunity to litigate her case on the merits.

At the heart of Plaintiff’s lawsuit are two Title VII claims—one for gender discrimination / sexual

harassment and another for retaliation. See Compl., ECF No. [8]. Both of these claims would be

barred by the applicable 90-day statute of limitations, should Plaintiff be required to file a new

complaint. See Ciralsky v. C.I.A., 355 F.3d 661, 672 (D. C. Cir. 2004). Therefore, even though

this Court dismissed Plaintiff’s Complaint “without prejudice,” the Court’s decision effectively

dismisses Plaintiff’s claims “with prejudice.” See Am. Mot. at 4. The Court finds that such an

outcome would be an inappropriately harsh sanction, particularly in light of the fact that Plaintiff

has retained new counsel.4 Moreover, Plaintiff’s new counsel has assured the Court that Defendant

4
 Defendant argues that dismissal with prejudice would be an appropriate sanction because
“Plaintiff’s conduct amounts to a failure to prosecute.” Def.’s Opp’n at 7-8. Defendant’s
argument is baseless. The D.C. Circuit has made clear that dismissal for failure to prosecute is a
“harsh sanction . . . limited to cases involving egregious conduct by particularly dilatory
                                                   9
will be properly served under Section 1608(a)(4) of the FSIA, should the Court grant Plaintiff’s

Amended Motion for Reconsideration. See Pl.’s Reply, ECF No. [23], at 7.

       In light of the foregoing, the Court finds that the delays resulting from former counsel’s

errors have had an “adverse impact on efficient court administration”; however, the delays have

not impacted these proceedings so significantly that they should preclude Plaintiff from having the

opportunity to litigate her case on the merits.

                       3. Reason for Delay and Whether the Movant Acted in Good Faith

       As to the remaining two factors—the reason for the delay and the absence of bad faith—

the Court finds, and Defendant makes no argument to the contrary, that the mistakes made by

Plaintiff’s former counsel were made in good faith. In addition, throughout briefing, Plaintiff’s

former counsel has provided reasons, albeit misguided, for each of her actions.5 Accordingly,

these two factors favor reinstating this case pursuant to Rule 60(b)(1).

       In light of the foregoing, the Court finds that the errors made by Plaintiff’s former counsel

constitute “excusable neglect” and that, on balance, the four equitable factors examined above

favor reinstating this case pursuant to Rule 60(b)(1). See In re Vitamins Antitrust Class Actions,

plaintiffs.” Angellino v. Royal Family Al-Saud, 688 F.3d 771, 775 (D.C. Cir. 2012) (citations
omitted). Furthermore, where, as here, there exists a “reasonable prospect that service can be
obtained,” dismissal is not appropriate. See id. at 776 (citations omitted).
5
  With regard to service, Plaintiff’s former counsel submitted that she “made an earnest effort to
comply with the service requirements of the FSIA,” and that when it became evident that her
efforts were ineffective, she attempted to effect service under an applicable international
convention, the Hague Service Convention. See Pl.’s Am. Mot. at 5. Former counsel also
explained that she did not inform the Court of her service attempts under the Hague Service
Convention because the service request was still outstanding and unfulfilled. Id. With regard to
amending the Complaint, former counsel asserted she did not previously seek to amend her
Complaint because she believed that she had pleaded facts sufficient to establish the Court’s
subject-matter jurisdiction over Plaintiff’s claims under the FSIA. Id. at 5-6.
                                                  10
327 F.3d at 1209. Accordingly, the Court shall vacate its [10] Order issued on May 28, 2015, as

to the part granting Defendant’s Motion to Dismiss and dismissing without prejudice Plaintiff’s

claims.

          The Court also finds that it would serve the end of justice under Rule 15(a) to grant leave

to Plaintiff to file the proposed amended complaint attached to her Amended Motion for

Reconsideration. See Fed. R. Civ. P. 15(a); see also Rollins v. Wackenhut Services, Inc., 703 F.3d

122, 130 (D.C. Cir. 2012) (“Federal Rule of Civil Procedure 15(a) provides that a district court

‘should freely give leave [to amend] when justice so requires.’ ”). Upon review of the proposed

amended complaint, it is clear that it sufficiently alleges a basis for the Court’s subject matter

jurisdiction over this action. See ECF No. [18-7]. Therefore, Plaintiff’s proposed amended

complaint cures the pleading defects identified by the Court in its Order issued May 28, 2015. See

Mem. Opinion (May 28, 2015), ECF No [11], at 5-6.6

          Plaintiff shall have until April 15, 2016 to properly effect service on Defendant under the

FSIA. If Plaintiff does not properly serve Defendant by April 15, 2016, then Plaintiff’s case shall

be dismissed.

6
  Defendant’s opposition contains a brief argument asserting that Plaintiff’s proposed amended
complaint fails to show that the Court has subject matter jurisdiction under the “commercial
activity” exception of the FSIA. See Def.’s Opp’n at 9-11. As noted by Plaintiff, Defendant’s
argument is better suited for a motion to dismiss. See Pl.’s Reply at 7. In any event, it is not
clear from the current record that the proposed amended complaint would be futile on the ground
that the “commercial activity” exception of the FSIA does not apply in this case. See Simpson v.
Socialist People's Libyan Arab Jamahiriya, 470 F.3d 356, 357 (D.C. Cir. 2006) (discussing
evidentiary burdens in resolving exceptions to sovereign immunity under the FSIA). Defendant
shall not be precluded from raising its argument as part of a motion to dismiss.
                                                11
                                     IV. CONCLUSION

       For the foregoing reasons, the Court, in an exercise of its discretion, shall GRANT

Plaintiff’s [18] Amended Motion for Reconsideration. Accordingly, the Court shall vacate its [10]

Order issued on May 28, 2015, as to the parts granting Defendant’s Motion to Dismiss and

dismissing without prejudice Plaintiff’s claims. The parts of the Court’s [10] Order denying

Plaintiff’s Motion for Entry of Default shall not be affected by this Memorandum Opinion and the

accompanying Order.

       The Court shall also GRANT Plaintiff leave to file the proposed amended complaint, ECF

No. [18-7], attached to her Amended Motion for Reconsideration. Plaintiff’s Amended Complaint

shall be deemed filed as of the date of this Memorandum Opinion and the accompanying Order.

       An appropriate Order accompanies this Memorandum Opinion.

                                                        /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE

                                               12


148 F.3d 1070
U.S.v.Colson*
NO. 97-3285
United States Court of Appeals,Eleventh Circuit.
June 18, 1998
Appeal From:  N.D.Fla. ,No.97000334CRRH

1
Affirmed.

*
 Fed.R.App.P. 34(a); 11th Cir.R. 34-3


404 S.E.2d 653 (1991)
329 N.C. 211
STATE of North Carolina
v.
Richard Wayne JOYNER.
No. 226A89.
Supreme Court of North Carolina.
June 12, 1991.
*654 Lacy H. Thornburg, Atty. Gen. by Debra C. Graves, Asst. Atty. Gen., Raleigh, for State.
Ralph G. Willey, III, Rocky Mount and Terry W. Alford, Spring Hope, for defendant appellant.
WHICHARD, Justice.
Defendant was convicted of first-degree murder on the basis of premeditation and deliberation, felony murder, and lying in wait. He also was convicted of robbery with a dangerous weapon and secret assault. He was sentenced to death for the murder, to fourteen years imprisonment for the robbery (consecutive), and to six years imprisonment for the secret assault (concurrent). We find no error in the guilt phase of the murder trial. The State concedes, and we agree, that defendant is entitled to a new sentencing proceeding under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). We find no error in the robbery trial. We arrest judgment on the secret assault conviction.
The State's evidence tended to show that around 7:00 p.m. on 1 December 1988, Ray Narron heard two gun shots in rapid succession. When he discovered that a shot had penetrated his air conditioner, he called the Nash County Sheriff's Department to report the shooting.
Deputy Mike Boone arrived at Narron's home, which is across the street from Harvey Lee Skinner's trailer, at 7:27 p.m. Boone took Narron's statement and drove to other residences to see if anyone had information about the shooting. When Boone turned into Skinner's driveway, he saw Skinner's body lying on its back. He determined that Skinner was dead and that he had been shot.
Investigator Dennis Honeycutt testified that Skinner's Ford Ranger truck was parked in the driveway, a set of keys was on the ground near Skinner's knee, and a cardboard shotgun wadding was about eleven inches from the keys. Investigators also found an unopened moneybag on the ground about nine feet from the victim's body. The bag contained $50.00 worth of food stamps and $769.00 in cash.
Investigators found three Federal twelve-gauge, triple-aught buckshot shell casings in the victim's yard. Two shells were approximately two feet apart and thirty feet from the victim's body. Investigators found the third shell eleven feet from the victim's body.
Deputy Boyce Varnell testified that on the morning after the shooting he went to Narron's Trailer Park across the road from the store the victim operated. As Varnell knocked on the door of a trailer, he heard two people running down the hall. When a woman let Varnell in the trailer, defendant and a man who said he was defendant's brother came out of the back of the trailer. Defendant told Varnell he had heard the victim arguing about money with some black men. Defendant said he had been at work at the Pepsi-Cola plant the night before and he owned a twelve-gauge shotgun. Varnell testified that when he examined the gun he noted a strong odor of gunpowder, indicating that the gun had been fired recently. He also found four triple-aught Federal shells.
State Bureau of Investigation Agent Michael Gavin testified that the murder weapon was a semi-automatic shotgun capable of discharging three shots in one and one-half seconds. He also testified that defendant's shotgun fired the shells found at the crime scene.
Deputy Milton Reams testified that defendant's supervisor said defendant had not been at work for a week. When Reams told defendant the deputies knew he had not been honest with them, defendant confessed to shooting the victim. Reams read defendant's statement into evidence.
In the statement, defendant said he lived at the trailer park with his brother, Daniel Joyner, and Betty and Larry Whitbeck. Defendant said he had been thinking for a few days about robbing the victim but did not want to do so in a place where the victim could see him. When he left the *655 trailer at 4:00 p.m. on 1 December 1988, he took his shotgun. During the day, defendant smoked about six or seven marijuana cigarettes. Defendant said after he decided at about 5:00 p.m. to rob the victim, he drove down a path behind the victim's trailer and loaded his gun. He went to the back of the victim's trailer and waited for about an hour and a half. When Skinner parked his Ranger and got out, defendant took the safety off and stepped around the corner. The victim shined a flashlight beam on defendant, and defendant shot him. Defendant said the victim fell to the ground after the second shot. Defendant shot him a third time, looked without success for the money, picked up the flashlight, and ran to his car. He drove around, smoked more marijuana, and threw the victim's flashlight in the woods before returning home.
Reams also testified that after making the confession, defendant accompanied deputies to the victim's trailer and retraced his actions of the previous night. With defendant's consent, the police photographed him during the demonstration.
Dr. Louis Levy, a forensic pathologist, testified that he noted thirty-five entry and exit wounds on the victim's body, mostly on the left side. There were some entrance wounds on the victim's back. He testified that the wounds resulted from several shotgun blasts and concluded that the wound to the left flank was the predominant cause of death. He also discovered a plastic shotgun wad under the victim's tee shirt and some wadding in the body. The wadding contained cloth fibers matching the fibers of the victim's shirt. In Levy's opinion, the presence of wadding beneath the victim's clothing and inside his body indicated that the shot transporting the wad was fired from a distance of about ten feet. The angle of the wound to the left flank was upwards, indicating that the body was on the ground when shot.
Defendant did not present evidence in the guilt phase.

GUILT PHASE
Defendant assigns as error the trial court's denial of his motion to dismiss the charge of first-degree murder on the basis of malice, premeditation and deliberation. Defendant contends his statement shows he did not premeditate and deliberate before shooting the victim. He argues that his statement is exculpatory and that the State is bound by all exculpatory evidence contained in the statement not contradicted by other evidence.
Premeditation means thought before action, "`for some length of time, however short.'" State v. Biggs, 292 N.C. 328, 337, 233 S.E.2d 512, 517 (1977) (quoting State v. Reams, 277 N.C. 391, 401, 178 S.E.2d 65, 71 (1970)). Before a jury may consider the charge of first-degree murder based upon premeditation and deliberation, the State must present substantial evidence of each essential element of the offense and of defendant as the perpetrator. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).
The trial court in considering [motions to dismiss] is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight.... The trial court's function is to test whether a reasonable inference of the defendant's guilt of the crime charged may be drawn from the evidence.
Id. at 99, 261 S.E.2d at 117 (citations omitted).
Whether an action is premeditated depends on whether thought preceded action, not the length of the thought. State v. Britt, 285 N.C. 256, 262, 204 S.E.2d 817, 822 (1974). Further, both premeditation and deliberation are mental processes generally proven by actions and circumstances surrounding the killing.
Deliberation means an intent to kill executed by the defendant in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.... Premeditation and deliberation refer to processes of the mind. They are not ordinarily subject to proof by direct evidence, *656 but must generally be proved, if at all, by circumstantial evidence.... Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.
State v. Williams, 308 N.C. 47, 68-69, 301 S.E.2d 335, 348-49, cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 177 (1983) (citations omitted); see also State v. Jackson, 317 N.C. 1, 23, 343 S.E.2d 814, 827 (1986).
It is well established that "[w]hen the State introduces into evidence a defendant's confession containing exculpatory statements which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by the exculpatory statements." State v. Williams, 308 N.C. at 66, 301 S.E.2d at 347. However, defendant's argument that his statement was exculpatory is incorrect. The statement in no way indicates that defendant was provoked to shoot or that his action was reflexive. Defendant gave the investigators the following account:
When I took the safety off I stepped around the corner and Skinner turned a flashlight on me.
Then I shot Skinner. Skinner did not say anything nor did I. Then I fired a second time....
....
Then I shot again and had taken three or four steps on the second shot. I walked closer because he scared me when he screamed. We did not speak on the second shot. He just screamed again.
Skinner was still standing after the first shot. The second shot, Skinner hit the ground.
On the whole, the statement is a factual account devoid of any words indicating provocation or surprise. Indeed, the statement's only implication of a perception by defendant is his explanation that he advanced because Skinner "scared me when he screamed." However, Skinner did not scream until the second shot, the shot that felled him. The statement does not indicate in any way that defendant fired because of a spontaneous reaction or because he was provoked.
The evidence shows, instead, that defendant prepared to shoot the victim by loading his gun and putting on the safety before he got out of his car. After the victim arrived, defendant removed the safety, knowing that shells were chambered and ready to be fired. Defendant was approximately thirty feet from the victim when the victim directed a flashlight beam at defendant's face. The victim and defendant exchanged no words and had no physical contact.
These facts do not show legal provocation. See State v. Williams, 308 N.C. at 69, 301 S.E.2d at 349 (not legal provocation when one-hundred-year-old victim threw salt at defendant after defendant broke into her home). By defendant's own statement, he was not scared until he fired the second shot. Also, according to defendant's account and the physical evidence, the victim was lying on the ground when defendant shot a third time at close range. Certainly an unarmed victim hit twice by shotgun blasts and lying on his back has "been felled and rendered helpless," id., when the assailant fires the third shot. The trial court did not err in submitting the charge of first-degree murder based upon premeditation and deliberation to the jury.
Defendant next contends that, in light of his conviction for murder based on lying in wait, the trial court erred in refusing to arrest judgment on his conviction for secret assault. We agree. We do not ascribe to the legislature the intent to punish a defendant both for a secret assault *657 and for a murder when the assault is the very act that underlies the conviction for first-degree murder by lying in wait. See State v. Perry, 305 N.C. 225, 234-37, 287 S.E.2d 810, 816-17 (1982).
"The intent of the Legislature controls the interpretation of a statute." Id. at 235, 287 S.E.2d at 816. We believe the purpose of the secret assault statute is to provide for the protection of society in cases of assault from ambush which do not result in the death of the victim, while the purpose of the murder by lying in wait statute is to provide for such protection in cases of assault from ambush which do result in the death of the victim. See State v. Allison, 298 N.C. 135, 147-48, 257 S.E.2d 417, 425 (1979). A defendant convicted of first-degree murder by lying in wait is sentenced either to death or to life imprisonment. N.C.G.S. § 14-17. To provide for additional punishment for the assault underlying the murder conviction would serve little purpose other than to augment paperwork, trial time, and the potential for error in an already overburdened court system. We do not believe the legislature, in enacting the secret assault and murder by lying in wait statutes, so intended, and we accordingly arrest the judgment entered upon the secret assault conviction.

SENTENCING PHASE
Defendant contends, and the State concedes, that the instructions imposed a unanimity requirement for finding mitigating circumstances and were therefore improper under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990); see also State v. McKoy, 327 N.C. 31, 394 S.E.2d 426 (1990).
In McKoy the United States Supreme Court held unconstitutional North Carolina's capital sentencing jury instructions which required the jury to find the existence of a mitigating circumstance unanimously in order for any juror to consider that circumstance when determining the ultimate recommendation as to punishment. The Court reasoned that North Carolina's "unanimity" requirement was constitutionally infirm because it "prevent[ed] the sentencer from considering all mitigating evidence" in violation of the eighth and fourteenth amendments.
State v. Sanderson, 327 N.C. 397, 402, 394 S.E.2d 803, 805-06 (1990) (citations omitted).
After reviewing the record, we conclude that the trial court gave the unconstitutional McKoy instruction. Thus, unless the State demonstrates that the error was harmless beyond a reasonable doubt, defendant must have a new sentencing proceeding. State v. McKoy, 327 N.C. 31, 394 S.E.2d 426; N.C.G.S. § 15A-1443(b) (1988). The trial court submitted eight possible mitigating circumstances and the jury, operating under the unanimity instruction, found only one. There was evidence to support at least some of the circumstances not found. The State does not deny that the unanimity requirement may have affected at least one juror's vote on at least some of the seven circumstances not found and thus affected the jury's sentencing recommendation. See State v. Smith, 328 N.C. 99, 138-39, 400 S.E.2d 712, 734-35 (1991); State v. Brown, 327 N.C. 1, 29-30, 394 S.E.2d 434, 451-52 (1990). Because we cannot conclude that the McKoy error was harmless, we order a new sentencing proceeding.
Case No. 88CRS 15500, FIRST-DEGREE MURDER: GUILT PHASE, NO ERROR; SENTENCING PHASE, NEW SENTENCING PROCEEDING.
Case No. 88CRS 15501, ROBBERY WITH A DANGEROUS WEAPON: NO ERROR.
Case No. 88CRS 15502, SECRET ASSAULT: JUDGMENT ARRESTED.


97 F.3d 1465
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Helen Grey TRIPPET;  Helen Grey Trippet, custodian forLeslie S. Murphy and Mark Murphy;  Robert S. Trippet,guardian of Virginia Trippet;  Mary Susan Trippet;Constance S. Trippet;  Flo Hedley Norvell;  Russel SimpsonNorvell, Executors of the Estate of Alberta SimpsonMatterson, Plaintiffs-Appellees/Cross-Appellants,v.TRI TEXAS, INC., a Florida corporation, now known asEnvirOmint Holdings, Inc.;  Charles S.Christopher, Defendants-Appellants/Cross-Appellees,andHOME-STAKE OIL AND GAS COMPANY, Home-Stake Royalty andJarrel B. Ormand, Defendants.
Nos. 95-5005, 95-5009.
United States Court of Appeals, Tenth Circuit.
Oct. 1, 1996.

Before SEYMOUR, Chief Judge, TACHA and EBEL, Circuit Judges.

1
ORDER AND JUDGMENT*

I.

2
Helen G. Trippet, on her own behalf and as Custodian for Leslie S. Murphy and Mark Murphy;  Robert S. Trippet, as Guardian of Virginia Trippet;  Mary S. Trippet;  Constance S. Trippet;  and Flo H. Norvell and Russell S. Norvell, as Executors of the Estate of Alberta S. Matterson,1 brought this contract action against EnvirOmint Holdings, Inc., f/k/a Tri Texas, Inc., Charles S. Christopher, Jarrell B. Ormand, Paine Webber, Inc., Home-Stake Oil and Gas Co., and Home-Stake Royalty Corp.2  In a thorough opinion, the district court recited the pertinent facts, which will not be repeated here.  In summary, the Trippets alleged breaches of contract, promissory note and guaranty agreement, fraud in the inducement, and conversion of property.  They sought rescission of the contracts and declaratory relief as to the true owners of certain stock and related dividends.  Helen Trippet also alleged Tri Texas was indebted to her as a surety on a related bank loan.  Tri Texas counterclaimed alleging breach of contract and tortious interference with a business relationship.  Following a bench trial, the district court found that Tri Texas breached material obligations.  Accordingly, the court rescinded the contracts and decreed the Trippets the rightful owners of all stock at issue.  The court also found in favor of Helen Trippet on the promissory note and surety claims.  The court rejected the Trippet's fraud claims and Tri Texas' counterclaim in their entirety.  Both parties appeal.

3
Tri Texas contends on appeal the district court erred in finding that registration was the object of the contract, that failure to file a registration statement was a material breach, that the contract was breached regardless of whether there was an enforceable oral agreement, and that the district court incorrectly relied on the opinion of a Trippet expert witness in finding that Tri Texas never intended to file a legitimate registration.  We address these issues first.

II.
A.

4
"In a contract action, our review of findings regarding a breach of the contract is controlled by the clearly erroneous standard.  Additionally, when extrinsic evidence is introduced to ascertain the meaning of contract terms, ... the trial court's interpretation ... is factual and cannot be set aside unless clearly erroneous."   Chaparral Resources, Inc. v. Monsanto Co., 849 F.2d 1286, 1289 (10th Cir.1988) (citations omitted).  Under this standard, the trial court's findings "will be deemed clearly erroneous only if [they are] without support in the record or if the appellate court 'on the entire evidence is left with the definite and firm conviction that a mistake has been made.' "   Doyle v. Resolution Trust Corp., 999 F.2d 469, 474 (10th Cir.1993) (quoting  Colon-Sanchez v. Marsh, 733 F.2d 78, 81 (10th Cir.), cert. denied, 469 U.S. 855 (1984)).  Moreover, "[i]f a trial is to the court, ... the resolution of factual issues and conflicting evidence lies solely within the province of the district court."   Raydon Exploration Inc. v. Ladd, 902 F.2d 1496, 1499 (10th Cir.1990) (citations omitted).

5
Breach of contract may serve as grounds for rescission in two circumstances.  First, rescission may be obtained where a failure of performance defeats the object of the contract or performance is an essential part of the bargain.   Id. at 1500.  Second, rescission is available where there is a total failure of consideration because the promised performance fails as a result of some supervening cause after an agreement is reached,  River Prod.  Co. v. Webb (In re Topco, Inc.), 894 F.2d 727, 742 (5th Cir.1990), or a partial failure of consideration if the failure defeats the object of the contract,  Davis v. Gwaltney, 291 P.2d 820, 823-24 (Okla.1955).  Tri Texas does not argue that the district court incorrectly stated the applicable law;3  we therefore review the numerous arguments under the clearly erroneous standard.

B.

6
Tri Texas first contends that the object of the contract was to gain control of the Home-Stake companies and not the registration of Tri Texas stock.  The district court found that the terms of the contracts required Tri Texas to register shares of stock issued to the Trippets, additional shares to be issued to the Trippets, and shares to enable the purchase of Home-Stake company shares through the exercise of options.  There was evidence that registration was the object of the contracts.  The terms of the contracts reference the above requirements, Aplt.App. at 1472, 1572, and state that the purpose of the registration was "to enable the Shareholders to make a public distribution of the Initial Shares and/or Additional Shares at all times,"  id. at 1472, 1588.

7
Moreover, the contracts state "[t]here is no certainty that [Tri Texas] will be successful in connection with" acquiring control of the Home-Stake companies,  id. at 1476, and provide that Tri Texas may "elect[ ] to satisfy its obligations ... by making a cash payment" to the Trippets,  id. at 1470.   The contract thus required Tri Texas to perform by paying the Trippets for their stock even if control was not gained.  More importantly, one of the defendants testified that registration would facilitate the end result of "selling stock."   Id. at 1117.   We conclude there was ample evidence to support the district court's conclusion that the object of the contracts was the registration of Tri Texas stock.

8
Tri Texas next argues the court erred in finding that the failure to file the registration was a material breach.4  We conclude the district court's finding that registration was the object of the contracts necessarily renders the failure to register a material breach.  Our conclusion is strengthened by Tri Texas' numerous requests to extend the registration deadline, see Aplt.App. at 611, 2338, 2339, "to avoid being in default,"  id. at 2640.   The requests also refute Tri Texas' argument that registration was worthless and irrelevant regardless of whether control was attained.5  The court's finding that the failure to register was a material breach was not clearly erroneous.

9
Tri Texas also contends the district court erred when it found there was a breach of contract regardless of whether there was an enforceable oral agreement.  The terms of the alleged oral agreement were disputed.  The court found that the Trippets conditioned any oral agreement on its reduction to a writing and that they never approved such a writing.  Mr. Trippet testified that during the oral negotiation he stated he would agree to an extension if there was a "quid pro quo."   Aplt.App. at 611.  The negotiations ended before a mutually agreeable writing was executed and Mr. Trippet stated he would recommend any future writing be approved if he "liked it."   Id. at 613.   Tri Texas did not produce any evidence that a writing was ever approved.  While the court did not explicitly conclude the oral agreement was unenforceable, that is the only possible inference from its findings,6 and therefore the court's finding is not clearly erroneous.

10
Finally, Tri Texas contends the court erred in finding that it never intended to file a legitimate registration because the court incorrectly relied on the opinions of a Trippet expert witness.  However, the record contains other evidence that Tri Texas never intended to file the registration statement.  Most importantly, Tri Texas conceded that "we didn't attempt to file the registration statement by the end of 1991," Aplt.App. at 1232, see also Aplt.  Rep. Br. at 10, and that the only subsequent filing was a sham, Aplt.  Br. at 44.  In addition, the SEC responded with a 10 page summary of the inadequacies of the subsequent filing.  The court relied upon both the filing and the SEC response.  We hold that there was sufficient evidence to support the court's finding that Tri Texas did not intend to file a legitimate registration.7

11
In her cross appeal, Helen Trippet contends the district court erred in failing to grant judgment to her for reimbursement of attorney's fees are paid to Pavillion Bank, contending she is entitled to the fees as a surety under Okla.  Stat. tit. 15 § 381 (1993).  We disagree.  When Pavillion Bank attempted to sell Mrs. Trippet's collateral on the related bank loan, she initiated suit against the bank to enjoin the sale, alleging she was not a surety because of the bank's participation in fraud and misrepresentation.  The court in that case entered judgment against Mrs. Trippet and ordered her to pay Pavillion Bank's court costs.  Thereafter, Mrs. Trippet agreed to pay Pavillion Bank's attorney's fees in the fraud suit when she purchased the note on the bank loan.  The district court did not err in declining to order reimbursement of the attorney's fees because the fees were not incurred "satisf[ying] the principal obligation," Okla.  Stat. tit. 15, § 381 (1993), but instead in an affirmative attempt to avoid satisfying the principal obligation.

12
Because we affirm the district court in favor of the Trippets on Tri Texas' appeal, we need not address the remaining issues raised in Trippet's cross appeal.  The decision of the district court is AFFIRMED.

*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions 10th Cir.  R. 36.3

1
 We will address plaintiffs collectively as the Trippets

2
 Mr. Ormand, Paine Webber and the Home-Stake companies were dismissed prior to trial.  We will address Tri Texas and Mr. Christopher collectively as Tri Texas

3
 Tri Texas disagreed with the district court's conclusion that Oklahoma law determined the remedy available, but did not challenge the court's conclusion that Texas law yielded the same result

4
 Tri Texas necessarily challenges only the materiality of the breach, having conceded that no registration was filed prior to December 31, 1991, Aplt.App. at 1232, and that the only subsequent attempt was "nothing more than Tri Texas' effort to finesse Mr. Trippet into withdrawing his demand for rescission," Aplt.  Br. at 44

5
 Tri Texas argues in its brief that registration was "worthless" unless it gained control, Aplt.  Br. at 39, and also that the "registration statement would be irrelevant if Tri Texas gained control,"  id. at 46

6
 Because the verbal agreement was unenforceable, we need not address Tri Texas' argument that the Trippet's rescission letter, Aplt.App. at 2261-64, constituted the first material breach

7
 Tri Texas also argues that to determine the materiality of a "timing" breach the court is required to measure the quality of efforts to perform against the agreed-upon date and circumstances.  When the district court found that Tri Texas did not intend to file a legitimate registration it necessarily found that Tri Texas did not use its best efforts


755 F.2d 926
Austinv.Gluckstern
83-6651
United States Court of Appeals,Fourth Circuit.
1/31/85

1
D.Md.

AFFIRMED


                                                                         FILED
                                                                          MAR 28 2019
                           NOT FOR PUBLICATION
                                                                      SUSAN M. SPRAUL, CLERK
                                                                        U.S. BKCY. APP. PANEL
                                                                        OF THE NINTH CIRCUIT

             UNITED STATES BANKRUPTCY APPELLATE PANEL
                       OF THE NINTH CIRCUIT

In re:                                               BAP No. OR-18-1128-SKuF

PRINCIPIA EQUITAS LLC,                               Bk. No. 18-30028-tmb7

                    Debtor.

CHARLES BARKER, III,

                    Appellant,

v.                                                    MEMORANDUM*

KENNETH S. EILER, Trustee,

                    Appellee.

                    Argued and Submitted on March 20, 2019
                             at Portland, Oregon

                               Filed – March 28, 2019

               Appeal from the United States Bankruptcy Court
                          for the District of Oregon

         *
        This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value. See 9th Cir. BAP Rule 8024-1.
           Honorable Trish M. Brown, Bankruptcy Judge, Presiding

Appearances:        Appellant Charles Barker, III, argued pro se.

Before: SPRAKER, KURTZ, and FARIS, Bankruptcy Judges.

                                 INTRODUCTION

      Appellant Charles Barker, III, is the sole owner and managing

member of chapter 71 debtor Principia Equitas LLC. Principia’s sole asset is

a parcel of real property. Barker does not dispute that there is, of record, a

first deed of trust fully encumbering the property. For years, Barker has

been litigating in nonbankruptcy courts with the alleged holder of the first

deed of trust: Bank of New York Mellon (the “Bank”). Barker filed a series

of motions in the bankruptcy court seeking to object to the Bank’s secured

claim even though the Bank never filed a proof of claim and even though

the chapter 7 trustee filed a final report identifying Principia’s bankruptcy

case as a no-asset case. The bankruptcy court held that it had no authority

to adjudicate Barker’s claim objection because the Bank had not filed a

proof of claim and denied each of Barker’s motions.

      We agree that Barker’s motions were not well taken. Barker could not

initiate the claims adjudication process by filing a claim objection against

      1
      Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1532.

                                           2
an alleged secured creditor who had not filed a proof of claim.

Accordingly, we AFFIRM the bankruptcy court’s orders denying Barker’s

motions.

                                          FACTS

       On January 4, 2018, Principia commenced its bankruptcy case by

filing a voluntary chapter 7 petition. Barker signed the petition on behalf of

Principia as its managing member. The petition identified the case as a

single-asset real estate case. The subject real estate is located in Portland,

Oregon. In its schedules, Principia listed the value of the property at

$668,840.00. Principia also listed secured debt encumbering the property of

$944,114.71, of which $862,423.00 was the disputed claim of the Bank.

       Barker has been litigating for years in a number of different courts

over the bona fides of the first trust deed of record encumbering the

property. The bankruptcy petition and schedules do not identify the type

of real property involved, but the papers filed in the nonbankruptcy

litigation indicate that the property is a parcel of residential real property.2

       Many of Barker’s filings are redundant, and the purpose of some of

them is obscure. Regardless, in the final analysis, they all boil down to a

       2
         We can and do take judicial notice of the contents of the case dockets in each of
the lawsuits that Barker has identified as pertaining to the subject real property. Estate of
Blue v. Cty. of L.A., 120 F.3d 982, 984 (9th Cir. 1997). We also take judicial notice of the
contents of the underlying bankruptcy case docket. O'Rourke v. Seaboard Sur. Co. (In re
E.R. Fegert, Inc.), 887 F.2d 955, 957–58 (9th Cir. 1989).

                                              3
single point; Barker sought to object to the secured claim of the Bank. But

the Bank did not file a proof of claim or otherwise participate in the

bankruptcy case, and the trustee’s final report designated Principia’s

bankruptcy case as a no-asset case.

      On March 20, 2018, the chapter 7 trustee filed an asset inventory

report indicating that there might be assets to distribute to creditors. The

initial report included an order and notice issued by the bankruptcy court

clerk’s office directing creditors to file proofs of claim on or before June 18,

2018. However, two days later, on March 22, 2018, the trustee filed an

amended report indicating that there were no assets to distribute to

creditors and hence the bankruptcy case had been fully administered.

      On March 29, 2018, Barker filed a notice indicating that he later

would file an objection to the trustee’s March 20, 2018 asset inventory

report. On April 2, 2018, the bankruptcy court issued a letter in response to

Barker’s notice. The court pointed out that the March 20, 2018 report had

been superseded by the trustee’s March 22, 2018 no-asset report. The court

directed Barker to file an amended objection if he disputed the trustee’s

amended report.

      One day later, on April 3, 2018, Barker filed a new notice. This one

disputed the claim of the Bank. Barker asserted that any interest the Bank

claimed in the property was subject to dispute both in terms of amount and

validity. According to Barker, there was no proof verifying the existence of

                                        4
the Bank’s interest in the property. Barker further challenged the validity of

any assignment of the deed of trust the Bank relied on to establish that it

was the successor in interest to the original first trust deed holder. Barker

also posited that, even if the Bank had a valid interest in the property, his

own interest in the property, arising from his alleged investment of

roughly $57,000, was superior. Finally, Barker requested that the court

enter an order directing the Bank to produce all documents supporting its

interest in the property.

      On April 4, 2018, the bankruptcy court entered an order denying all

relief requested in Barker’s April 3, 2018 notice. The bankruptcy court held

that it had no authority to adjudicate a claim objection against the Bank.

The court explained that the Bank had not filed a proof of claim, so the

court could not determine any claim the Bank might have asserted had it

filed a proof of claim.

      On April 23, 2018, Barker filed an amended notice once again

disputing the Bank’s claim. The grounds set forth in the amended notice

mirror those set forth in Barker’s April 3, 2018 notice. On April 25, 2018, the

bankruptcy court entered an order denying the amended notice of

disputed claim for the same reasons it denied the original April 3, 2018

notice.

      On May 4, 2018, Barker moved for an order delaying the closing of

Principia’s bankruptcy case. As Barker put it: “There are critical actions

                                       5
that must be undertaken on behalf of Debtor, which substantially affect the

disposition of the instant case, as well as the economic impact to both the

Debtor, as well as all Creditors.” According to Barker, Principia’s

bankruptcy counsel no longer was acting in Principia’s best interests and

effectively had abandoned the case. Barker reasoned that the court should

give him more time before closing the case so that he could find new

counsel to represent Principia’s interests in the bankruptcy case.

      On May 8, 2018, the bankruptcy court entered an order denying

Barker’s motion. As the court pointed out, Barker failed to specify what

critical actions needed to be taken in the bankruptcy case and how or why

Principia’s counsel allegedly had failed or refused to act. Lacking any

better explanation from Barker, the bankruptcy court presumed that the

motion was simply a third attempt by Barker to put the Bank’s claim at

issue. The bankruptcy court once again held that it could not address the

Bank’s claim. Based on this holding, and on the absence of evidence

supporting the relief requested, the bankruptcy court denied the motion.

      On the same day, May 8, 2018, the bankruptcy court entered its order

approving the chapter 7 trustee’s no-asset final report and closing

Principia’s bankruptcy case. Barker timely appealed the two May 8 orders.

                              JURISDICTION

      The bankruptcy court has jurisdiction over claims litigation pursuant

to 28 U.S.C. §§ 1334 and 157(b)(2)(B). We have jurisdiction under 28 U.S.C.

                                      6
§ 158.

                                     ISSUE

         Did the bankruptcy court commit reversible error when it denied

Barker’s motions, thereby precluding him from objecting to the Bank’s

claim, given that the Bank did not file a proof of claim?

                           STANDARD OF REVIEW

         This appeal raises a question of law regarding the claims adjudication

process, which we review de novo. See HSBC Bank USA, Nat'l Ass'n v.

Blendheim (In re Blendheim), 803 F.3d 477, 484–85 (9th Cir. 2015).

                                 DISCUSSION

         On appeal, Barker states the same argument a variety of different

ways. According to Barker, if he could use Principia’s bankruptcy case to

challenge the Bank’s claim and attack its asserted lien against the subject

real property, then all of Principia’s other creditors (including himself)

would benefit. Towards this end, Barker attempted to force the Bank to

participate in the bankruptcy claims process even though the Bank did not

file a proof of claim and did not in any other way participate in the

bankruptcy case. The bankruptcy court held that, under these

circumstances, Barker could not force the Bank to participate in the

bankruptcy claims process.

         We agree with the bankruptcy court. It long has been held that liens

on real property ordinarily pass through bankruptcy unaffected. Dewsnup

                                        7
v. Timm, 502 U.S. 410, 418 (1992). Therefore, secured creditors have the

option to forego any distribution from the bankruptcy estate and instead

may rely on their lien rights outside of bankruptcy to satisfy any debt they

are owed. See Schlegel v. Billingslea (In re Schlegel), 526 B.R. 333, 342 (9th Cir.

BAP 2015) (citing Brawders v. Cty. of Ventura (In re Brawders), 503 F.3d 856,

872 (9th Cir. 2007)).

      In short, secured creditors generally cannot be forced to adjudicate

their claims in a bankruptcy case. Participation in the bankruptcy claims

process is voluntary rather than compulsory for secured creditors. As

stated by the Ninth Circuit Court of Appeals:

      Every claim must go through the allowance process set forth in
      11 U.S.C. § 502 before the claim holder is entitled to participate
      in the distribution of estate assets. The bankruptcy court may
      decline to allow—or “disallow”—a claim for a variety of
      reasons. But importantly, for creditors holding liens secured
      by property, filing a proof of claim and participating in the
      allowance process—indeed, participating in the bankruptcy
      process as a whole—is completely voluntary. A creditor with
      a lien on a debtor’s property may generally ignore the
      bankruptcy proceedings and decline to file a claim without
      imperiling his lien, secure in the in rem right that the lien
      guarantees him under non-bankruptcy law: the right of
      foreclosure.

In re Blendheim, 803 F.3d at 484–85 (citations omitted and emphasis added);

see also Wade v. Forest Villa Homeowners’ Ass’n (In re Wade), BAP No.

NC-14-1562-DJuTa, 2015 WL 7281670, at *3 n.4 (9th Cir. BAP Nov. 17,

                                         8
2015), aff’d, 671 F. App’x 689 (9th Cir. 2016) (“a secured creditor ‘may

disregard the bankruptcy proceeding, decline to file a claim and rely solely

upon his security if that security is properly and solely in his possession’”)

(quoting U.S. Nat'l Bank in Johnstown v. Chase Nat'l Bank of N.Y.C., 331 U.S.

28, 33 (1947)).

       Barker attempted to invoke the bankruptcy claims process against the

Bank in a no-asset case where the Bank had not filed a proof of claim.3 That

claims process would be meaningless unless the trustee administered the

real property and that administration yielded funds for distribution to the

estate’s creditors. But the trustee did not administer the real property.

Instead, the chapter 7 trustee duly filed a final report identifying this case

as a no-asset case. Barker has never disputed that there exists a lien of

record fully encumbering the sole asset of the estate – the subject real

property. Thus, on its face, there was nothing incorrect with the trustee’s

decision not to administer the asset and to file a no-asset final report. Nor

does the record reflect any error in the bankruptcy court’s approval of that

report and its decision to close the case. Indeed, Barker never filed any

paper in the bankruptcy court specifically arguing that the trustee’s no-

       3
         Barker admittedly has been litigating with the Bank for years in nonbankruptcy
venues concerning the lien. It is telling that, after all of that litigation, Barker was unable
to present in the bankruptcy court any evidence to support his concerns regarding the
lien. All he presented to the court were his suspicions and his speculation regarding the
lien.

                                               9
asset report was improvident or in error.

      On appeal, Barker assails the decisions of both the trustee and the

bankruptcy court. At oral argument, Barker complained that the trustee’s

and the bankruptcy court’s inaction with respect to the Bank's alleged lien

demonstrated an absence of “intellectual curiosity.” But intellectual

curiosity does not govern the claims adjudication process, particularly

when there is no proof of claim filed against the bankruptcy estate. There is

no legitimate purpose served in deciding who is entitled to a distribution

from a debtor’s bankruptcy estate when there are no assets to distribute. In

re Wade, 2015 WL 7281670, at *3 (citing 4 Collier on Bankruptcy

¶ 501.01[3][b] (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. rev.)).

      As set forth above, the trustee and the bankruptcy court correctly

decided not to take further action based on the dictates of the Bankruptcy

Code and Rules. On this record, the bankruptcy court did not commit

reversible error when it denied all relief Barker sought in his motions.

                              CONCLUSION

      For the reasons set forth above, we AFFIRM the bankruptcy court’s

orders denying Barker’s motions seeking to invoke the claims adjudication

process against the Bank.

                                      10