NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 15 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: SHMUEL ERDE, No. 20-60001

Debtor. BAP No. 19-1022

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MEMORANDUM*

SHMUEL ERDE,

Appellant,

v.

THEODOR NICKOLAS BODNAR; et al.,

Appellees.

In re: SHMUEL ERDE, No. 20-60003

Debtor. BAP No. 19-1139

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SHMUEL ERDE,

Appellant,

v.

THEODOR NICKOLAS BODNAR; et al.,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appellees.

Appeals from the Ninth Circuit Bankruptcy Appellate Panel Gan, Taylor, and Spraker, Bankruptcy Judges

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

In these consolidated appeals, chapter 11 debtor Shmuel Erde appeals pro se

from the Bankruptcy Appellate Panel’s (“BAP”) decision affirming the bankruptcy

court’s orders (1) sua sponte dismissing his adversary proceeding against Theodor

Nickolas Bodnar and others, and imposing a pre-filing restriction on Erde as a

vexatious litigant and (2) denying Erde’s request for permission to file a motion to

alter or amend a judgment. We have jurisdiction under 28 U.S.C. § 158(d). We

review de novo the bankruptcy court’s conclusions of law and for clear error its

findings of fact. Decker v. Tramiel (In re JTS Corp.), 617 F.3d 1102, 1109 (9th

Cir. 2010). We affirm.

The bankruptcy court properly dismissed Erde’s adversary proceeding

because the claims were actually litigated and decided in prior actions among the

parties that resulted in final adjudication on the merits, or could have been raised in

** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 20-60001 20-60003 the prior actions. See 11 U.S.C. § 105(a) (setting forth bankruptcy court’s

equitable power to “issue any order, process, or judgment that is necessary or

appropriate to carry out the provisions of this title” including sua sponte action

“necessary or appropriate to enforce or implement court orders or rules, or to

prevent an abuse of process”); Howard v. City of Coos Bay, 871 F.3d 1032, 1040-

42 (9th Cir. 2017) (requirements for issue preclusion under federal law); Owens v.

Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713-14 (9th Cir. 2001)

(requirements for claim preclusion under federal law); see also Reyn’s Pasta Bella,

LLC v. Visa USA, Inc., 442 F.3d 741, 745 (9th Cir. 2006) (standard of review for

application of issue preclusion and claim preclusion).

The bankruptcy court did not abuse its discretion by declaring Erde a

vexatious litigant after providing notice and an opportunity to be heard, developing

an adequate record for review, making substantive findings as to the frivolous or

harassing nature of Erde’s litigation history, and narrowly tailoring its prohibition

on future filings to those in bankruptcy court against the named Bodnar defendants,

as to whom Erde had been filing vexatiously. See Ringgold–Lockhart v. County of

Los Angeles, 761 F.3d 1057, 1061-67 (9th Cir. 2014) (setting forth standard of

review and procedural and substantive standards for a federal pre-filing order

based on a vexatious litigant determination).

We reject as without merit Erde’s contention that the BAP erred by denying

3 20-60001 20-60003 his request for publication.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

All pending motions and requests are denied.

AFFIRMED.

4 20-60001 20-60003