FILED SEP 9 2024 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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. WW-23-1190-BSG BRENDA M. JOHNSON, WW-23-1195-BSG Debtor. WW-23-1199-BSG (Related Appeals) BRENDA M. JOHNSON, Appellant, Bk. No. 3:15-bk-41795-BDL v. ALBERTSONS COMPANIES, INC.; Adv. No. 3:23-ap-04031-BDL AMAZON.COM SERVICES, LLC; EQUIFAX INFORMATION SERVICES, MEMORANDUM∗ LLC; PUYALLUP TRIBAL GAMING ENTERPRISES, INC. dba EMERALD QUEEN CASINO & HOTEL; THE TRAVELERS INDEMITY COMPANY; STATE OF WASHINGTON, Appellees.

Appeal from the United States Bankruptcy Court for the Western District of Washington Brian D. Lynch, Bankruptcy Judge, Presiding

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

INTRODUCTION

Appellant Brenda Johnson1 appeals several orders from the bankruptcy

∗ 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 On August 1, 2024, the day before oral argument, the Panel received a filing from court: orders denying and granting requests to shorten time; an order

dismissing her complaint with leave to amend; an order to show cause why

she should not be declared a vexatious litigant; an order dismissing her later

amended complaint with prejudice and dismissing her adversary proceeding;

and an order declaring her a vexatious litigant and imposing filing

restrictions. Ms. Johnson has not articulated any substantive argument for

how the bankruptcy court erred or abused its discretion in these decisions.

Our review of the record reveals none, and we AFFIRM.

FACTS

Ms. Johnson filed a chapter 7 2 bankruptcy case on April 17, 2015. She

received a discharge and the case was closed.

Eight years later, Ms. Johnson, pro se, filed an adversary complaint

against multiple defendants seeking damages for contempt for their alleged

violation of the discharge injunction. Her Second Amended Complaint is one

of the two operative complaints at issue. In support, Ms. Johnson submitted

documents filed in other tribunals involving cases between her and many of

the same defendants named in the adversary action, including filings from a

1999 family law case involving her former husband.

Ms. Johnson. In that filing, which we reject as an unauthorized supplemental reply, Ms. Johnson states that her last name is still Rembert, the last name of her former spouse. However, since she filed her bankruptcy case and subsequent appeals with the name Johnson, we refer to her as Ms. Johnson. No disrespect is intended. 2 Unless specified otherwise, all chapter and section references are to the

Bankruptcy Code,

, all "Rule" references are to the Federal Rules of Bankruptcy Procedure, and all "Civil Rule" references are to the Federal Rules of Civil Procedure. 2 Of the 50 named defendants, several responded by filing motions to

dismiss under Civil Rule 12(b)(6), including Albertson's Companies, Inc.

("Albertsons"), Amazon.com Services LLC ("Amazon"), Equifax Information

Services, LLC ("Equifax"), Puyallup Tribal Gaming Enterprises, Inc. dba

Emerald Queen Casino & Hotel ("Emerald Queen"), and the State of

Washington. They argued that the Second Amended Complaint failed to state

a claim for contempt related to the discharge injunction.3 Precisely, they

argued that the Second Amended Complaint did not specify the nature of the

alleged violation(s) or set forth any facts showing what any of the defendants

had done to violate the discharge order. At best, they argued, it contested

some wage garnishments under a domestic support order that were not

subject to the discharge injunction.

Meanwhile, Ms. Johnson requested that a default be entered against all

defendants. Her position appeared to be that the defendants were required to

file an "answer" and that motions to dismiss were not a proper response.

The bankruptcy court granted the motions to dismiss the Second

Amended Complaint with leave to amend ("First Dismissal Order").4 The

court warned Ms. Johnson that if her amended complaint did not assert a

factual basis for a contempt claim against the defendants, the adversary

action would be dismissed. The court also told Ms. Johnson that it was

3 The State of Washington moved to dismiss the adversary as to all defendants. 4 The bankruptcy court denied the State of Washington's request to hear its motion on shortened time with the others but agreed to consider it at the continued hearing on December 13, 2023. 3 issuing an order to show cause why she should not be declared a vexatious

litigant.

On November 11, 2023, Ms. Johnson filed her Third Amended

Complaint, the other operative complaint at issue. It contained more detail,

but it added no specific facts to support a claim against any of the defendants

for violation of the discharge injunction.

The bankruptcy court then entered an order to show cause ("OSC") why

Ms. Johnson should not be declared a vexatious litigant. The court noted that

the nine cases she had filed in the district and appellate courts since her

discharge in 2015 contained many of the same claims she was attempting to

litigate in her adversary action against nearly all of the same defendants. A

district court case dismissed with prejudice in 2020 had raised the same

claims, and Ms. Johnson had recently sought to reopen that case so she could

file a contempt action. Ms. Johnson filed a response to the OSC. It did not

address the court's concerns but rather alleged misconduct by the court.

Ms. Johnson appealed the order denying the State of Washington's

motion for order shortening time, the First Dismissal Order, and the OSC

("Appeal 1190").

Amazon, Albertsons, Emerald Queen, and Equifax moved to dismiss

the Third Amended Complaint with prejudice under Civil Rule 12(b)(6),

arguing that it too failed to state a claim for contempt for violation of the

discharge injunction against any of the defendants. The dismissal motions

filed by Amazon, Albertsons, and Emerald Queen were set for December 13,

4 2023, the continued hearing date for the State of Washington's earlier motion

to dismiss. The bankruptcy court granted Emerald Queen's motion for order

shortening time so that its dismissal motion could be heard with the others.

Ms. Johnson appealed Emerald Queen's order shortening time and the order

denying the State of Washington's motion for order shortening time that was

already part of Appeal 1190 ("Appeal 1195").

At the joint hearing on the motions to dismiss the Third Amended

Complaint and the OSC, defendants argued that in her 84 filings in the

adversary proceeding, Ms. Johnson had not made any allegations relating to

a violation of the discharge injunction by the defendants. The court

independently noted that none of the defendants, other than perhaps Ms.

Johnson's former husband, was even a creditor in her 2015 bankruptcy. Thus,

in the court's opinion, it did not appear that any of them could have violated

the discharge injunction. As for the domestic support obligation debt, the

court explained to Ms. Johnson that the discharge did not eliminate that debt

nor would the discharge injunction apply to it.

The bankruptcy court granted the motions to dismiss the Third

Amended Complaint with prejudice ("Final Dismissal Order"). It found that

Ms. Johnson again failed to state factual allegations which would support a

claim for contempt for violation of the discharge injunction. Under the

circumstances, the court found that granting leave for further amendment

would be futile. Additionally, the court ruled that Ms. Johnson was a

vexatious litigant given her history of repetitive, bad faith, and harassing

5 litigation over the same claims against the same defendants in other tribunals

and now in the bankruptcy court, which lacked jurisdiction ("Vexatious

Litigant Order"). Ms. Johnson appealed the Final Dismissal Order and the

Vexatious Litigant Order ("Appeal 1199").

JURISDICTION

The bankruptcy court had jurisdiction under

and

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

.

ISSUES

1. Did the bankruptcy court abuse its discretion in denying the State of

Washington's motion for order shortening time?

2. Did the bankruptcy court err in granting the motions to dismiss the

Second Amended Complaint with leave to amend and entering the First

Dismissal Order?

3. Did the bankruptcy court abuse its discretion in entering the OSC?

4. Did the bankruptcy court abuse its discretion in granting Emerald

Queen's motion for order shortening time?

5. Did the bankruptcy court err in granting the motions to dismiss the

Third Amended Complaint with prejudice and entering the Final Dismissal

Order?

6. Did the bankruptcy court abuse its discretion in entering the Vexatious

Litigant Order?

STANDARDS OF REVIEW

Whether a party has standing is a question of law we review de novo.

6 All. United Ins. Co. v. Krasnoff (In re Venegas),

, 560 (9th Cir. BAP

2020). We review de novo the bankruptcy court's grant of a Civil Rule 12(b)(6)

motion to dismiss. Calise v. Meta Platforms, Inc.,

, 738 (9th Cir.

2024). De novo review means that we review the matter anew, as if the

bankruptcy court had not previously decided it. Francis v. Wallace (In re

Francis),

(9th Cir. BAP 2014).

We review a dismissal without leave to amend and with prejudice for

abuse of discretion. Tracht Gut, LLC v. Cnty. of L.A. (In re Tracht Gut, LLC),

(9th Cir. BAP 2014), aff'd,

(9th Cir. 2016). We

review the bankruptcy court's procedural rulings for abuse of discretion.

Phillips v. Ornoski,

(9th Cir. 2012). We review for an abuse

of discretion a bankruptcy court's decision to issue pre-filing orders. Koshkalda

v. Schoenmann (In re Koshkalda),

, 757 (9th Cir. BAP 2020) (citing

Ringgold-Lockhart v. Cnty. of L.A.,

(9th Cir. 2014); Molski v.

Evergreen Dynasty Corp.,

(9th Cir. 2007)). A bankruptcy

court abuses its discretion if it applies an incorrect legal standard, misapplies

the correct legal standard, or makes factual findings that are illogical,

implausible, or not supported by the record. United States v. Hinkson,

(9th Cir. 2009) (en banc).

DISCUSSION

A. Appeal 1190

Ms. Johnson appeals three orders in this appeal. The first is the court's

denial of the State of Washington's motion for order shortening time.

7 Contrary to some appellees' argument, this interlocutory order became final

and appealable once the Final Dismissal Order was entered. See Hall v. City of

L.A.,

(9th Cir. 2012) (noting general rule that

interlocutory rulings merge into the final judgment and are within the

appellate court's jurisdiction to review on appeal from that judgment).

Ms. Johnson has failed to establish that she has both Article III and

prudential standing to appeal this order. See Clifton Cap. Grp., LLC v. Sharp (In

re E. Coast Foods, Inc.),

(9th Cir. 2023) (citing Fondiller v.

Robertson (In re Fondiller),

(9th Cir. 1983)), cert. denied sub

nom.,

(2024). As a threshold matter, Ms. Johnson has not

shown that by entry of the order she suffered an "injury in fact." See

(citations omitted). She has also not shown that she was "aggrieved by" or

"adversely affected pecuniarily" by the order. See In re Fondiller,

. If anything, she benefitted from the denial of the motion to shorten time,

especially since the State of Washington was seeking dismissal on behalf of

all defendants.

Ms. Johnson also appeals the OSC. This too was an interlocutory order

that became final and appealable when the court entered the Vexatious

Litigant Order. See Hall,

. Ms. Johnson does not raise any

argument for how the bankruptcy court abused its discretion in entering the

OSC. However, since she has also appealed the Vexatious Litigant Order, we

address that issue below.

8 Lastly, Ms. Johnson appeals the First Dismissal Order, which granted

the motions to dismiss and dismissed her Second Amended Complaint with

leave to amend. Generally, an order dismissing a complaint with leave to

amend is a non-appealable interlocutory order. See Weston Fam. P'ship LLLP v.

Twitter, Inc.,

(9th Cir. 2022) (citation omitted). Some

appellees argue that the First Dismissal Order was interlocutory and,

apparently, will never be final and appealable. Not so. That order became

final and appealable once the bankruptcy court entered the Final Dismissal

Order, which dismissed Ms. Johnson's adversary proceeding with prejudice.

See Hall,

.

The movants sought to dismiss the Second Amended Complaint under

Civil Rule 12(b)(6). To survive a motion to dismiss under Civil Rule 12(b)(6),

as incorporated by Rule 7012, "a complaint must contain sufficient factual

matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"

Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). A claim has "facial plausibility" only when "the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged."

(citing

Twombly,

). A complaint must contain "[f]actual allegations

[sufficient] to raise a right to relief above the speculative level." Twombly,

. Although pro se pleadings are construed liberally, they must

meet a minimum threshold in "providing a defendant with notice of what it is

that it allegedly did wrong." Brazil v. U.S. Dep't of Navy,

, 199 (9th

9 Cir. 1995). If a pro se litigant fails to meet that threshold, the appropriate

remedy is dismissal. Doe v. Fed. Dist. Ct.,

(9th Cir. 2012).

A motion to dismiss "may be based on either a 'lack of a cognizable legal

theory' or 'the absence of sufficient facts alleged under a cognizable legal

theory.'" Johnson v. Riverside Healthcare Sys., LP,

(9th Cir.

2008) (quoting Balistreri v. Pacifica Police Dep’t,

(9th Cir.

1990)).

Ms. Johnson attempted to allege a claim for contempt for violation of

the discharge injunction. Under § 524, the discharge injunction voids any

prepetition judgments or debts that were discharged in bankruptcy and

operates as an injunction against the commencement or continuation of an

action to collect, recover, or offset those discharged debts. Other than her

conclusory allegation that the defendants violated the discharge injunction,

Ms. Johnson provided no facts whatsoever describing how any of the

defendants did so. She does not assert any argument for how the bankruptcy

court erred in granting the motions to dismiss the Second Amended

Complaint with leave to amend. We see none.

To the extent Ms. Johnson argues that defendants were required to file

an answer as opposed to motions to dismiss, she is incorrect. Filing a motion

to dismiss prior to filing an answer is not only permitted but required. See

Civil Rule 12(b); Rule 7012; see also Elvig v. Calvin Presbyterian Church,

(9th Cir. 2004) (noting that a Civil Rule 12(b)(6) motion to dismiss

must be made before the responsive pleading – i.e., answer).

10 B. Appeal 1195

Here, Ms. Johnson appeals two orders. The first is the court's order

granting Emerald Queen's motion for order shortening time to hear its

motion to dismiss the Third Amended Complaint. As we noted above and

contrary to some appellees' argument, this interlocutory order became final

when the bankruptcy court entered the Final Dismissal Order. Hall,

. Ms. Johnson has not raised any argument for how the bankruptcy

court abused its discretion in entering the order shortening time. Further,

nothing indicates that she was prejudiced by it. See Thomas v. Coppa-Knudson

(In re Thomas), BAP No. NV-19-1331-GTaB,

, at *5 (9th Cir.

BAP Sept. 28, 2020) (observing that an appellant must show prejudice from

the procedural deficiency) (citing Rosson v. Fitzgerald (In re Rosson),

(9th Cir. 2008), overruled on other grounds by Law v. Siegel,

(2014), as recognized by Nichols v. Marana Stockyard & Livestock Mkt., Inc. (In

re Nichols),

, 961 (9th Cir. 2021)).

Emerald Queen filed its motion to dismiss on December 1, 2023, and

requested that it be heard on December 13, 2023, which is when the State of

Washington's same motion was being heard. The court granted the request

on December 4, 2023. Thus, the 21-day notice period under Local Bankruptcy

Rule 9013-1(d)(2)(F) was shortened to nine days. The order provided that Ms.

Johnson could file an opposition before the hearing. She did file one and

argued at the hearing. Although time was short, Emerald Queen raised the

same argument that the State of Washington raised in its motion to dismiss,

11 and Ms. Johnson had 43 days' notice of the latter motion. Consequently, we

perceive no abuse of discretion by the bankruptcy court in shortening time.

The second order Ms. Johnson appeals is the court's earlier order

denying the State of Washington's motion for order shortening time that was

already part of Appeal 1190. We have addressed this above.

C. Appeal 1199

Finally, Ms. Johnson appeals the Final Dismissal Order dismissing the

Third Amended Complaint with prejudice and the Vexatious Litigant Order

declaring her a vexatious litigant and imposing filing restrictions. Liberally

construing her appeal brief, Ms. Johnson argues that her case should have

gone to trial and that the bankruptcy court erred by dismissing the Third

Amended Complaint with prejudice. We disagree. While this version of her

complaint contained more allegations than prior versions, it still failed to set

forth any facts supporting a claim for contempt for violation of the discharge

injunction, or any other bankruptcy-related claim that was cognizable and

redressable by the bankruptcy court. Ms. Johnson's grievances appeared to

relate to incidences involving her attempts to obtain housing, child custody

and domestic support disputes, personal injury claims, Social Security

disputes, defamation claims, and employment disputes including workplace

discrimination and worker's compensation claims.

Although Ms. Johnson did not request leave to amend, the bankruptcy

court correctly considered whether an amendment could cure the complaint's

deficiencies. See Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

(9th Cir. 1990) (directing that the trial court should grant leave

to amend even if no request to amend is made, unless it determines that the

pleading could not possibly be cured by the allegation of other facts). In

determining whether to grant leave to amend, the court should consider

several factors including: (1) undue delay; (2) bad faith or dilatory motive by

the movant; (3) repeated failure to cure deficiencies by previous amendments;

(4) undue prejudice to the opposing party; and (5) futility of amendment.

Brown v. Stored Value Cards, Inc.,

(9th Cir. 2020) (citing Foman

v. Davis,

(1962)). While leave to amend is to be freely given,

if the court determines that amendment would be futile, it must dismiss the

complaint with prejudice. In re Tracht Gut, LLC,

; see also Flowers

v. First Hawaiian Bank,

(9th Cir. 2002) (dismissal of a pro se

complaint without leave to amend is proper when the deficiencies cannot be

cured by amendment or after the pro se litigant is given an opportunity to

amend) (citation omitted).

While the bankruptcy court did not discuss each of the above factors or

cite Foman (or its progeny) in its decision, it did find that amendment would

be futile given Ms. Johnson's previous complaints and attempt at amending

which failed to allege a plausible claim for violation of the discharge

injunction. Further, any domestic support obligation debt, which theoretically

is the only thing that could have been at issue, was nondischargeable and not

protected by the discharge injunction. Besides futility, which alone is

dispositive, the court's findings in support of the Vexatious Litigant Order of

13 bad faith, improper harassment, and unnecessary burden further support its

decision to dismiss the Third Amended Complaint with prejudice. On this

record, the bankruptcy court did not abuse its discretion in dismissing the

Third Amended Complaint with prejudice.

Finally, Ms. Johnson appeals the Vexatious Litigant Order. Bankruptcy

courts have inherent authority to sanction vexatious litigation and impose

pre-filing restrictions. In re Koshkalda, 622 B.R. at 757-58. To impose pre-filing

restrictions against a vexatious litigant, the court must:

(1) give litigants notice and an opportunity to oppose the order before it is entered; (2) compile an adequate record for appellate review, including a listing of all the cases and motions that led the [bankruptcy] court to conclude that a vexatious litigant order was needed; (3) make substantive findings of frivolousness or harassment; and (4) tailor the order narrowly so as to closely fit the specific vice encountered.

Id. at 758 (cleaned up).

Ms. Johnson does not raise any argument for how the bankruptcy court

abused its discretion in entering the Vexatious Litigant Order and imposing

filing restrictions. In any case, we see no abuse of the court's discretion here.

Ms. Johnson had ample notice between when the bankruptcy court

announced it would be issuing the OSC and the hearing date. She filed an

opposition and argued at the hearing. In the OSC, the bankruptcy court listed

the nine cases Ms. Johnson had filed in other courts since 2015. It further

observed that in the adversary proceeding she was seeking many, if not all, of

the same claims that were raised against most, if not all, of the same

14 defendants in the case dismissed by the district court with prejudice in 2020.

The bankruptcy court determined that the district court's dismissal had not

deterred Ms. Johnson, and that her attempt to relitigate these baseless claims

in the bankruptcy court, which lacked jurisdiction, was done in bad faith and

to harass and burden the defendants. Further, Ms. Johnson had repeatedly

failed to establish a plausible claim for what the bankruptcy court did have

jurisdiction over – a claim for contempt for violation of the discharge

injunction. Finally, the Vexatious Litigant Order was narrowly tailored to

prohibit only Ms. Johnson's pro se filings of pleadings or new cases against

the same defendants based on the same and/or dismissed claims or issues.

CONCLUSION

For the reasons stated above, we AFFIRM.

15