Levander

ORDER

The opinion filed on July 7, 1999, is amended to include Judge Ferguson’s concurring opinion attached hereto.

OPINION

In December, 1993, the bankruptcy court awarded attorneys’ fees to Chapter 11 debtors Roger and Josie Levander against All-Carr Communications Company, Inc. (“Corporation”). In November, 1996, the bankruptcy court entered two orders that amended the December, 1993, order to add All-Carr Communications Company, a general partnership (“Partnership”), as an additional judgment-debt- or. On appeal, the district court reversed the November, 1996, order for lack of jurisdiction. The Levanders appeal,' contending that jurisdiction existed to amend the original order under the bankruptcy court’s inherent equitable powers, Rule 60(a) and (b) of the Federal Rules of Civil Procedure, and § 187 of the California Code of Civil Procedure. We have jurisdiction under 28 U.S.C. § 158 (d), and we reverse. We hold that the bankruptcy court had jurisdiction to amend its order under § 187 and its inherent power based on the fraud perpetrated upon it by the Corporation and the Partnership.

I.

The Levanders owned a cellular telephone service company. In 1991 and 1992, they…

specially concurring:

As the opinion makes plain, we have previously recognized that Federal Rule of Civil Procedure 69(a) allows recourse to state procedures for the execution of a federal judgment. See Cigna Property & Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 421 (9th Cir.1998). Because California law permits the amendment of the judgment to add judgment debtors like the partnership here, see Carr v. Barnabey’s Hotel Corp., 23 Cal.App.4th 14, 20-21 , 28 Cal.Rptr.2d 127 (1994), we need not reach nor resolve the novel question of whether a federal court’s inherent equity powers permit such amendment. Rather than make new law unnecessarily, and in dicta, no less, I would leave the resolution of this question for another day.

While I concur in the result and in parts I, II, and IV, I cannot join part III of the opinion or that portion of part V which relies on the alternative “inherent powers” ground.

concurring:

When an appellate court has alternative bases for its holding, it cannot be claimed that all but one of the bases is unnecessary dicta. Part III of the Court’s opinion here is not irrelevant to our disposition of the matter, as the special concurrence claims; rather, it is an alternative holding providing one of two independent bases for supporting our disposition. Cf. United States Steel Corp. v. United States Environmental Protection Agency, 444 U.S. 1035, 1038 , 100 S.Ct. 710 , 62 L.Ed.2d 672 (1980) (Rehnquist, J., dissenting from denial of certiorari) (recognizing that alternative holdings are not dicta).