FILED JUN 24 2022 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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 Nos. SC-21-1151-SFB THOMAS OLIVER, SC-21-1182-SFB Debtor. (Related Appeals)

THOMAS OLIVER, Bk. No. 20-01053-LA7 Appellant, v. Adv. No. 20-90093-LA

UNITED STATES TRUSTEE, MEMORANDUM* Appellee.

Appeal from the United States Bankruptcy Court for the Southern District of California Louise Decarl Adler, Bankruptcy Judge, Presiding

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

INTRODUCTION

Thomas Oliver voluntarily filed his chapter 7 1 petition in the hopes of

defeating a disputed judgment debt. In his bankruptcy filings, he claimed

* 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. 1 Unless specified otherwise, all chapter and section references are to the

Bankruptcy Code, 11 U.S.C. §§ 101–1532, all “Rule” references are to the Federal Rules of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of Civil Procedure. 1 to have virtually no non-exempt assets available for distribution. But the

United States Trustee (“UST”) commenced an adversary proceeding

against Oliver objecting to his discharge for allegedly transferring assets

with the intent to hinder, delay, or defraud creditors within a year of

bankruptcy under § 727(a)(2)(A) and for allegedly making false statements

under oath under § 727(a)(4). Based on his refusal to cooperate in the

discovery process, the bankruptcy court struck Oliver’s answer and

granted a default judgment denying him a discharge. Oliver appeals both

the sanctions order and entry of the default judgment. Additionally, he

appeals the denial of his motion to recuse the bankruptcy judge.

Oliver contends that the judgment denying him a chapter 7 discharge

is the result of a vast conspiracy perpetrated against him by both state and

federal courts as well as the U.S. Department of Justice. This appeal is

limited to the bankruptcy court’s judgment denying his discharge and the

rulings leading to that judgment. Having reviewed the record, we conclude

that the bankruptcy court correctly applied the law regarding terminating

sanctions, entry of default judgments, and denial of discharge. It also

correctly denied Oliver’s recusal motion. Nor were any of these rulings the

result of clearly erroneous factual findings. We AFFIRM.

2 FACTS 2

A. Oliver’s bankruptcy filing and the UST’s adversary complaint.

In February 2020, Oliver voluntarily filed his chapter 7 petition.

Several months later, the UST filed a complaint objecting to Oliver’s

discharge under § 727(a)(4)(A) and (a)(2)(A). The UST alleged that Oliver

knowingly and fraudulently omitted from his schedules and the Statement

of Financial Affairs (“SOFA”): (1) a bank account in his mother’s name that

he used for his own personal income and expenses; (2) his interest in and

right to royalties from a book; and (3) the conveyance of a rental property

located in Rhode Island to his mother and the recording of that deed.

In his schedules, all but $200 of his listed assets were claimed as

exempt. He did not disclose any ownership interest in real property, bank

accounts, or books that he had authored. As for creditors, he listed a single

debt; a disputed judgment for $32,913.30 entered in favor of Alyssa Parent

D.B.A. Sun Days Tanning. Oliver has stated that the judgment was entered

against him by a state court in Massachusetts.

In his Schedule I and his SOFA, Oliver identified a significant

amount of rental income, but he did not specify the source of that income.

He further indicated that Parent was in the process of domesticating and

enforcing her “fraudulent” judgment against the Rhode Island rental

2 We exercise our discretion to take judicial notice of documents filed in Oliver’s bankruptcy case and in the related adversary proceeding. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood),

, 233 n.9 (9th Cir. BAP 2003).

3 property. As he put it, Parent was “trying to steal” that property. He

further stated in his SOFA that he had not owned the Rhode Island

property since 2014. The UST alleged in the complaint, however, that

Oliver signed the deed, and his signature was acknowledged, on January

31, 2020. The UST further alleged that Oliver’s deed to his mother

conveying the Rhode Island property was recorded on February 19, 2020,

several days before Oliver filed his bankruptcy.

In his response to question 18 of the SOFA, he stated that he had not

sold, traded, or otherwise transferred any interest in property within two

years of his bankruptcy.

The UST also alleged that Oliver testified under oath at his § 343

examination that he never owned a parcel of rental property in West Palm

Beach, Florida formerly owned by his father. According to the complaint,

Oliver’s examination testimony was knowingly and fraudulently false. The

complaint referenced an alleged 2017 Warranty Deed executed by Oliver’s

father that granted Oliver the residual interest in the Florida property upon

his father’s death. The UST alleged that Oliver’s father passed away shortly

after the alleged deed was executed. The complaint further referenced a

second Warranty Deed executed in January 2018 conveying title to the

Florida property from Oliver to his mother.

Oliver filed an answer to the complaint. It did not admit or deny the

UST’s allegations but opined that the UST’s objection to his discharge was

“frivolous.”

4 B. The discovery disputes.

During the course of the litigation, the UST twice moved to compel

Oliver to comply with discovery requirements. These motions led to three

orders, two awards of monetary sanctions against him, and ultimately to

the order striking his answer and entering his default.

The bankruptcy court’s order granting the first motion to compel

directed Oliver to provide the UST with contact information for four

witnesses he identified in his initial disclosures. Because Oliver had stated

that he was not in contact with his witnesses, the court alternately allowed

him to provide similar information for the third-party intermediary Oliver

said had provided him with affidavits executed by those witnesses. The

order also required Oliver to deliver to the UST complete versions of

several documents he had turned over as part of the disclosure that were

missing pages. As with the witnesses, the court provided Oliver with an

alternative means of compliance if he could not obtain the missing pages:

he could provide a declaration attesting to his efforts to obtain them. The

court awarded $2,199.00 in monetary sanctions against Oliver to be paid to

the UST within 30 days.

The UST filed a second motion to compel Oliver to respond to its

written discovery requests. It also contended that Oliver was not

cooperating with finding a mutually agreeable time and date for his

deposition. Oliver had provided two dates for his deposition but proposed

that it occur between “7 pm to 10 pm.” Oliver failed to file an opposition to

5 the second motion to compel. Before the hearing, the UST filed a status

report advising the court that it had received responses to its

interrogatories and requests for production from Oliver, but they were

insufficient. The UST also attached an email from Oliver dated December

18, 2020, to its counsel that stated, “as i said previously, i am available for

deposition dec 18 and 19 from 10am to 7 pm.” The deposition did not

occur. Oliver maintained that he previously emailed the UST agreeing to be

deposed at those dates and times. The UST denied that Oliver sent any

email agreeing to be deposed during business hours prior to December 18,

2020. 3

Against this backdrop, the court held a hearing on the UST’s second

motion to compel on January 14, 2021. Though Oliver had not filed a

written opposition, he appeared at the hearing and advised the court that

he opposed the motion. The court heard from Oliver but granted the

motion as unopposed for lack of a written opposition. The court imposed

$3,582.55 in monetary sanctions to be paid within 30 days.4 In its order

granting this motion to compel, the court ruled that Oliver needed to

3 Roughly two months later, in his opposition to one of the UST’s motions to extend discovery deadlines, Oliver presented an email dated November 24, 2020, for the first time to the court. At the end of the email, there is the following statement: “and as i said previously, i am available for deposition dec 18 and 19 from 10 am to 7 pm.” The bankruptcy court found that Oliver’s version of this email was fabricated. Oliver challenges this finding as well. 4 Oliver later stated in his papers that he had no money to pay any sanctions but

would not have paid them even if he did because he viewed both sanctions orders as unjust and fraudulently imposed. 6 submit full and complete responses to the UST’s written discovery. The

record does not show that Oliver ever provided the UST with additional,

complete responses to its discovery requests. More importantly, the court

ordered: “The Defendant shall appear for deposition on February 12, 2021

at 9:00 am at the offices of Esquire Court Reporting, 402 West Broadway,

Suite 1550, San Diego, CA 92101.” He failed to do so.

On February 9, 2021, shortly before his scheduled deposition, Oliver

filed a motion for the bankruptcy judge to recuse herself from the

adversary proceeding. The court denied the motion.

After Oliver failed to appear for his deposition, the UST filed an ex

parte application for order shortening time for a hearing on a motion to

extend the discovery cutoff date. In the application and the extension

motion, the UST asserted that Oliver had failed to attend his deposition

and still had not provided full and complete responses to the UST’s written

discovery. The court granted the ex parte application and set the extension

motion for hearing on shortened time.

Oliver was served with, and opposed, the extension motion. He

stated that he would not attend the deposition without an attorney or

witness. He also expressed health concerns associated with the pandemic.

He maintained that a Chief Judge Order entered in March 2020 for the U.S.

District Court for the Southern District of California (“Chief Judge Order”)

that “excused” in-person appearances for court proceedings, hearings, and

conferences also excused his attendance at the deposition.

7 At the April 1, 2021 hearing on the UST’s extension motion, Oliver

restated his concern that the deposition should be taken virtually. The UST

explained that Oliver’s deposition was always intended, and scheduled, to

be a virtual deposition but he was required to appear at the court reporter’s

office where he would be put into a conference room for the deposition.

The UST’s counsel advised the court and Oliver that no one else would be

in that room with him during his deposition. Counsel further explained

that she would participate virtually.

The court accepted that Oliver apparently misunderstood what was

intended as far as the arrangements for the deposition. It proceeded to

“reset” his deposition. The court then told Oliver:

I will order that the deposition be held virtually and I will order that you have your own personal room at the court reporter’s office and that the deposition be held virtually by Ms. Miheilic setting up the appropriate call via Zoom or whatever she’s going to use to do it, and the deposition goes forward at that time, at a reasonable hour, preferably 10:00 a.m., but it could be at -- I don’t know how long Ms. Mihelic is planning to have for the deposition, but normally we allow a day.

The court asked Oliver if this was acceptable. Oliver then renewed his

concern that he needed a witness to attend the deposition with him to

prevent the other participants from doctoring the results of the deposition.

After explaining the precautions and safeguards designed to ensure the

accuracy and reliability of deposition transcripts, the court asked the UST

whether it objected to a witness attending the deposition in the room with

8 Oliver. The UST agreed so long as the witness was merely observing and

not participating in the deposition.

The court then discussed the date and time for the deposition and

suggested April 19, 2021, at 10:00 a.m. The parties agreed, though Oliver

informed the court he needed to find a witness who would be available

then. The court asked that Oliver inform the UST by the next day if there

was a problem finding someone to witness the deposition as scheduled.

The court then told the litigants, “I'm going to make an order today that the

deposition is to be held April 19, 2021, at 10:00 a.m., at the office of the

court reporter.” Again, the court reiterated that the deposition would be

“at the court reporter” on April 19, 2021. The court also directed the UST to

file a status report no later than April 22, 2021, to let the court know

whether the deposition occurred as ordered. Before concluding the matter,

the court asked, “Mr. Oliver, we’re clear, are we now, what your

obligations are versus her [Mihelic’s] obligations?” Oliver responded, “I

believe so.”

Consistent with the court’s rulings at the hearing, the court issued a

minute order that same day providing:

Hearing continued to 4/29/21 at 2:00[.] The discovery deadlines for the UST is [sic] extended to 5/1/21 per the tentative ruling. The deposition to be held virtual in the Court Reporter office on 4/19/21 at 10:00 a.m.

Mr. Oliver has the court’s permission to have a witness/friend with him at the deposition.

9 Mr. Oliver to let Ms. Mihelic know by tomorrow if his witness/friend is available for 4/19/21.

The UST to file a status report to be filed by 4/22/21 informing the court if the deposition has been completed. Order to be prepared by Ms. Mihelic.

There is no evidence in the record that Oliver informed the UST by

April 2, 2021, that his witness was unavailable for the April 19, 2021

deposition.

The UST filed the required status report and informed the court that

Oliver did not appear at the court reporter’s office for the deposition as

ordered. Oliver responded to the UST’s status report. He pointed out that

he emailed the UST questioning why he had to appear in person at the

court reporter’s office but received no response. He further stated that the

morning of the scheduled deposition he emailed the UST, “in order to not

inconvenience my friend, i'm am [sic] preparing to conduct the deposition

remotely where i live.” That email also requested video conference

instructions so that he could be deposed from home. In his response to the

status report, Oliver stated that he informed the UST that he was willing to

begin the virtual deposition from his home up until noon that day.

The UST attached the email string referenced above to its motion for

terminating sanctions. The email string shows that Oliver sent the emails

described above, including an email he sent to the UST roughly 30 minutes

before the deposition was scheduled to start informing the UST that he 10 wanted to be deposed from his house. The string also includes the UST’s

email response telling him that he needed to appear at the court reporter’s

office as ordered by the court. The UST also informed Oliver: “If you do

not appear at the court reporter’s office at 10 am today for your deposition,

you will be in violation of at least two court orders, and I will seek

additional sanctions against you.” Oliver responded two minutes later: “i

just don't trust you criminals.”

The UST’s motion for terminating sanctions pointed out that Oliver

twice failed to appear for his deposition as ordered by the court. It also

informed the court that he never complied with the order on the second

motion to compel to provide full and complete responses to the UST’s

written discovery. Nor did he comply with the order requiring him to

supplement his initial disclosures. The UST also noted that Oliver had

never paid any of the monetary sanctions awarded against him. The

motion was supported by the declaration of the UST’s counsel setting out

the factual basis of the motion.

Oliver timely opposed the terminating sanctions motion. He argued

that the court never required his personal attendance at the court reporter’s

office because it used the word “virtual” in its April 1, 2021 minute order.

He also maintained that the court authorized him to renegotiate the

deposition location based upon the court’s ruling on a separate motion

heard that same day. He again argued that the Chief Judge Order excused

his personal attendance at the deposition. In the rest of his response, he

11 largely reiterated points previously made in opposition to the UST’s prior

motions to compel. According to Oliver, he had always complied with the

court’s orders and any failure to complete discovery was the UST’s fault.

Both Oliver and the UST appeared and argued at the hearing on the

terminating sanctions motion. At the conclusion of the hearing the court

granted the motion. It subsequently entered an order striking Oliver’s

answer and entered default against him. Ultimately, the UST applied for

entry of a default judgment. The application was supported by the

allegations set forth in the UST’s complaint, as well as Oliver’s § 343

examination testimony, and copies of documents recorded in Rhode Island.

The court granted the UST’s application and entered a default judgment

denying Oliver his discharge on August 4, 2021.

C. The appeals.

Oliver timely appealed both the terminating sanctions order and the

default judgment.

Prior to filing his notice of appeal of the default judgment, Oliver

filed a document entitled “Objection to ‘application for default judgment’

and the world’s largest crime syndicate’s entry of judgment by default.” If

this filing sought to alter or amend the default judgment under Rule 9023,

it would have rendered any appeal premature pending a ruling. Rule

8002(b). Because Oliver never requested any specific relief in this objection,

the bankruptcy court treated it as a mere statement of displeasure rather

than a formal request for relief. Oliver did not respond to this panel when

12 it inquired regarding the nature of his objection. We, therefore, treat it in

the same manner as the bankruptcy court. Accordingly, Rule 8002(b) does

not apply to Oliver’s August 6, 2021 objection, and the objection did not

prevent the default judgment from becoming final for purposes of his

appeals.

On December 30, 2021, Brian Vukadinovich filed a fifteen-page

document in this appeal. He identifies this document as an Amicus Curiae

brief in support of Oliver’s position on appeal. The filing largely complies

with Rule 8017, and it states that the UST consented to its filing. Though we

have reviewed and considered the filing, it does not specifically address

any of the controlling issues raised in this appeal.

JURISDICTION

The bankruptcy court had jurisdiction under

and

157(b)(2)(J). We have jurisdiction under

.

ISSUES

Did the bankruptcy court abuse its discretion in denying Oliver’s

recusal motion?

Did the bankruptcy court abuse its discretion when it granted the

UST relief under Civil Rule 37(b)(2)(A), struck Oliver’s answer, and entered

a default judgment against him?

STANDARD OF REVIEW

We review the denial of a recusal motion for an abuse of discretion.

Hale v. U.S. Tr. (In re Basham),

(9th Cir. BAP 1997). We also

13 review for an abuse of discretion the granting of terminating sanctions.

Seiko Epson Corp. v. Koshkalda,

, 465 (9th Cir. 2019) (citing

Conn. Gen. Life Ins. v. New Images of Beverly Hills,

(9th

Cir. 2007)).

A bankruptcy court abuses its discretion if it applies an incorrect

legal rule or its factual findings are illogical, implausible, or without

support in the record. TrafficSchool.com v. Edriver, Inc.,

(9th

Cir. 2011).

DISCUSSION

In his opening brief, Oliver addresses two main points: (1) the

bankruptcy court should have recused itself based on its purported bias;

and (2) it should not have imposed terminating sanctions because he

complied with the court’s discovery orders. We examine each of these

points in turn.

A. The bankruptcy court did not abuse its discretion when it denied Oliver’s recusal motion.

Pursuant to

and to Rule 5004(a), Oliver sought to

recuse the presiding bankruptcy judge. The court denied the motion

finding that he failed to demonstrate sufficient cause for recusal. Oliver

challenges that finding.

Rule 5004(a) specifies that

(a) governs when a

bankruptcy judge should disqualify himself or herself from an adversary

proceeding or contested matter. In turn,

(a) requires a judge

14 to “disqualify [herself] in any proceeding in which [her] impartiality might

reasonably be questioned.” The judge also must recuse herself when she

has a personal bias or prejudice concerning a party.

(b)(1).

On the other hand, when a judge’s impression of the party is formed

exclusively from events that transpired in the judicial proceedings in

question, those impressions “do not constitute a basis for a bias or

partiality motion unless they display a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Liteky v. United

States,

(1994). Similarly, “judicial remarks during the

course of a trial that are critical or disapproving of, or even hostile to,

counsel, the parties, or their cases, ordinarily do not support a bias or

partiality challenge.”

Moreover, “a judge has [a] strong…duty to sit

when there is no legitimate reason to recuse….” Clemens v. U.S. Dist. Ct.,

(9th Cir. 2005) (cleaned up). Thus, only in the rarest of

circumstances can the court’s “rulings, opinions formed or statements

made” in the course of proceedings serve as the basis for disqualification.

United States v. Holland,

(9th Cir. 2008). 5

5 As Holland elaborated:

We, along with our sister circuits, have identified various matters which will not ordinarily require recusal under

:(1) rumor, speculation, beliefs and similar non-factual matters; (2) the mere fact that a judge has previously expressed an opinion on a point of law; (3) prior rulings in the proceeding; (4) mere familiarity with the defendant(s) or the type of charge; (5) baseless personal attacks on or suits against the judge by a party; (6) reporters’ personal opinions or characterizations; and (7) threats or other attempts to intimidate the judge. 15 Oliver offers a host of reasons why he believes the presiding judge

should have recused herself. None required recusal. Oliver initially claims

that the UST and the court engaged in impermissible ex parte contacts

prohibited by Rule 9003. He cites two “ex parte motions” involving

requests to extend time to file and serve other court papers. 6 Ex parte

motions filed on the docket are not the sort of communications Rule 9003

was meant to guard against. See generally In re Vascular Access Ctrs., L.P.,

, 158 (Bankr. E.D. Pa. 2021) (explaining that not all ex parte

contacts are forbidden).

Oliver also contends that the court ignored the UST’s purported

fraud and lies and permitted them to go unpunished while criticizing his

litigation conduct. The record does not support the conclusions he attempts

to draw. Improper inferences, unwarranted speculation, inuendo, and

hyperbole are not sufficient to justify recusal. See Holland,

n.5. Moreover, to the extent the court’s remarks were critical of or favorable

to one side or the other, they were made in the course of the litigation and

are not a proper ground for recusal. Liteky,

.

Oliver points to certain professional organizations to which he

believes the presiding judge and the UST’s staff belonged. More generally,

he claims that the court and the UST “manipulated the record.” There is no

n.5 (cleaned up). 6 See S.D. Cal Local Rule (“LBR”) 9006-1(d); LBR 9013-3 (authorizing certain ex

parte motions). 16 evidence that the available transcripts and dockets are incomplete or

inaccurate in any material way. Oliver again relies on improper inferences,

unwarranted speculation, inuendo, and hyperbole, which are insufficient

to justify recusal. See Holland,

n.5.

Most of Oliver’s remaining points are variations of his complaint that

the court always ruled against him. Oliver lists specific rulings rejecting his

attempts to compel discovery from the UST, and the court’s denial of oral

motions. As we already have noted, only in the rarest of circumstances can

the court’s rulings form a proper basis for recusal.

. No

extraordinary circumstances are evident here. Oliver attempts to show bias

by pointing out that the court granted at least two oral motions made by

the UST while denying his. But the UST’s oral motions merely sought

extensions of time whereas Oliver made oral motions seeking substantive

rulings on significant factual and legal issues, including his claimed rights

to trial by jury and appointment of counsel. 7 There is no valid comparison

between the two.

7 Oliver makes much of his jury trial demand, but the adversary proceeding never reached trial so the issue is moot. Even if we were to reach it, there is no right to a jury in a challenge to a debtor’s discharge under § 727. This is because there is no right to jury for matters based in equity. Granfinanciera, S.A. v. Nordberg,

(1989). And “a bankruptcy discharge and questions concerning the dischargeability of certain debts, involve issues with an equitable history and for which there was no entitlement to a jury trial in the courts of England prior to the merger of law and equity.” Schieber v. Hooper (In re Hooper),

(9th Cir. BAP 1990). Similarly, Oliver insists that he had an absolute constitutional right to the appointment of counsel. There generally is no right to counsel in civil litigation. Palmer v. Valdez,

(9th Cir. 2009). The cases Oliver cites are not to the contrary. Maness v. 17 Finally, Oliver next contends that the court wrongly permitted the

UST to draft many of the orders it entered in the adversary proceeding. It is

standard practice in many districts for the court to direct the prevailing

party to prepare drafts of proposed orders. This practice is adopted by

local rule in the Southern District of California Bankruptcy Court. See

Bankr. S.D. Cal. R. 7054-2, 9013-10; see also Bankr. C.D. Cal. R. 9021-

1(b)(1)(A) (“Unless the court otherwise directs, a proposed order must be

prepared by the attorney for the prevailing party.”). In short, the fact that

the UST drafted proposed orders and lodged them with the court is not

evidence of either wrongdoing or court bias.

In sum, nothing in Oliver’s appeal briefs persuades us that the

bankruptcy judge was obliged to recuse herself. To the contrary, on this

record, she had a continuing duty to consider and resolve the objection to

discharge action.

B. The bankruptcy court did not abuse its discretion when it entered terminating sanctions against Oliver.

Citing Civil Rule 37(b)(2)(A) and (d), the court struck Oliver’s

answer, entered his default, and ultimately entered a default judgment

denying his discharge. The court found that Oliver had refused to

Meyers,

, 455 & n.5 (1975) (state court’s imposition of criminal contempt sanctions against defense counsel in a civil injunction proceeding required counsel); In re G & H Steel Serv.,

(Bankr. E.D. Pa. 1987) (employment of counsel under § 327(a) and (e)). More importantly, even if the court had erred on these issues, or any other matter raised in the adversary, the remedy is appeal, not recusal.

18 meaningfully participate in discovery and had willfully and repeatedly

violated the court’s discovery orders for the specific purpose of frustrating

the UST’s legitimate discovery efforts. Citing R&R Sails, Inc. v. Insurance Co.

of Pennsylvania, 673F.3d 1240, 1246 (9th Cir. 2012), the court further noted

that Oliver bore the burden to establish that his non-compliance with his

discovery obligations was either substantially justified or harmless.

According to the court, Oliver failed to meet this burden.

In deciding whether to impose terminating sanctions, the court

considered each of the factors set forth in Fatima v. Stern (In re Fatima), BAP

No. CC–17–1235–LSKu,

, at *4 (9th Cir. BAP May 29,

2018): “(1) the public’s interest in expeditious resolution of litigation; (2) the

court’s need to manage its dockets; (3) the risk of prejudice to the party

seeking sanctions; (4) the public policy favoring disposition of cases on

their merits; and (5) the availability of less drastic sanctions.”

(citing

Conn. Gen. Life Ins.,

). After weighing these factors, the

court concluded that it should impose terminating sanctions against Oliver.

Oliver has not pointed to any error in the legal rules the court applied

or the factors it considered. Oliver’s only pertinent arguments concern the

court’s findings. He asserts that the court erred when it found that he failed

to comply with the court’s discovery orders. He alternately argues that his

noncompliance was substantially justified. He contends that to the extent

discovery was not completed, it was the consequence of the court’s and the

UST’s errors, omissions, and malfeasance.

19 The record supports the bankruptcy court’s findings that he failed to

comply with its discovery orders and that his failure was both willful and

in bad faith. He ignored the court’s orders compelling discovery. The

court’s first order required Oliver to provide disclosures of his witnesses

and production of certain incomplete documents. The second order

overruled his objection to the UST’s interrogatories and requests for

production, required full and complete responses, and set his deposition

for a date certain at a specified location. The record does not show that he

complied with either order.

Both the first and second order also imposed monetary sanctions.

Oliver stated that he was not able pay the sanctions, but he also advised the

court that even if he could, he would not pay them.

The court’s April 1, 2021 discovery order was the product of

considered attempts to address Oliver’s stated reasons for not complying

with the prior order specifically requiring his attendance at the previously

scheduled deposition. The court addressed his concerns at length in an

attempt to provide Oliver the opportunity to proceed to trial. He failed to

comply with that order as well. Rather, he unilaterally attempted to change

the requirements the court imposed for his deposition. He did not seek

relief from or clarification of the April 1, 2021 order before doing so.

Rather, he substituted his own judgment and reasoning in place of the

court’s order and has offered excuses after the fact for his noncompliance.

20 In short, he chose not to comply with a specific order compelling his

attendance for deposition for the second time.

The record supports the bankruptcy court’s findings that he willfully

and in bad faith failed to comply with the court’s discovery orders. It does

not support Oliver’s alternate claim that his noncompliance was

substantially justified. When as here a pro se litigant’s conduct

demonstrates a continuing unwillingness to cooperate with legitimate

discovery requests and comply with orders compelling discovery, even

after the court has given the litigant leeway, additional time to comply, and

has utilized lesser alternative sanctions to no effect, the court has discretion

to consider and enter terminating sanctions. See, e.g., Meeks v. Nunez, Case

No. 13CV973-GPC (BGS),

, at *6-8 (S.D. Cal. Mar. 8, 2017),

aff'd,

(9th Cir. 2021); In re Fatima,

, at *5. 8

CONCLUSION

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

orders striking Oliver’s answer, entering his default, and granting a default

judgment denying his discharge.

8On February 11, 2022, Oliver filed a motion to strike the UST’s appeal brief. The motion to strike is factually and legally meritless. Accordingly, that motion is hereby ORDERED DENIED.

21