1 

### NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: ANTONIO ALEJANDRO GUTIERREZ , Debtor

. BAP No. ID

- 21

- 1156

- SGB

Bk. No. 19

- 00416

- JMM

Adv. No. 2 0

- 06023

- JMM

MEMORANDUM * ANTONIO ALEJANDRO GUTIERREZ , Appella n t,

v. STATE OF OREGON, DEPARTMENT OF CORRECTIONS , Appellee.
Appeal from the United States Bankruptc y Court for the District of Idaho Joseph M

. Me ier , Chief Bankruptcy Judge, Presiding

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

INTRODUC T ION Antonio Alejandro Gutierrez is a former chapter 7 1 debtor and is a n
inmate at the Snake River Correctional Institution , run by the Oregon Department of Corrections ( “ ODOC ” )

. After h e received his discharge and

* This disposition is not appropriate for publication. Alth ough it may be ci ted for whatever persua sive value it may h ave, see Fed. R. App. P. 32.1, it h as no precedent ial value, see 9th Cir. BAP R ule 8024

- 1

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

– 1532

. 

# FILED

MAR 2 2022

SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT2 his case was fully administered, Gutierr e z filed a complaint stating tw o

c la ims for relief . O ne cla im cha llenged the method used by the ODOC to

c ollect court filing fees he owed under 28 U.S.C. § 1915(b)

. The other claim
concerned the dischargeability of those debts under § 523(a)(17)

. The ban k ruptcy court first di smissed the dischargeability claim on
the m erits. The court then dismissed the sole surviving cl aim challenging
ODOC ’ s collection methods for lack of subject matter jurisdiction

. Gutierrez has not appe aled the dismissal of his dischar g eability claim . He only has appealed the dismissal of his remaining claim.
Gutierrez insist s tha t the bankruptcy court had “ related to ” jurisdiction over the claim regarding ODOC ’ s collection methods. Alternately, he contend s t hat the bankruptcy court sh o uld have exerc ised
its discretion to “ retain ” jurisdiction over th at claim. But the bankruptcy

court never had an y jurisdiction over th is claim to retai n.
Ne ither of Gutierrez ’ s arguments on appeal hav e an y merit. Accordingly, we AFFIRM.
FACTS In April 2019, G u tierrez commenced his bankruptcy case by filing a voluntary chapter 7 p etition. In Aug ust 2019, the bankruptcy court entered

o rder s di scharging debtor and cl os ing Gutierrez ’ s no

- asset case. 2

2 We ex ercise our discretion to take judi cial not ice of documents electronically fi led in Gutierrez ’ s bankruptcy case and the related adv e rsary proceeding

. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood) , 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).3 In O ctober 2019, the bankruptcy court reopened the case at
Gut i errez ’ s request. The p urpose of reopening the case was to permit the
debtor to co mmenc e an adversary proce eding challenging the dischargeability of debt s he owed for federal c ourt filing fees he incur r ed
under 28 U.S.C. § 1915(b). Under the statu te, suc h f ees are owed to the
federal courts but typically a re collected from an inmate ’ s prisoner trust account by the ap pl ica ble correction al inst it ut io n

. S ee 28 U.S.C. § 1915(b)(2). In this case, th at institution was ODOC.
Gutierrez f iled his adversary complain t seeking tw o forms of relief. First, he challenged the discharg eability of the federal court filing fees. He
admitted in his com plaint that his court fees were th e type of debt that fell within the scope of § 523(a)(1 7) , but h e asse rted that the statu te s h ould not be applie d to his fees bec ause none of the case s he fi led were frivolous.
S econd, Gutierrez challenged ODOC ’ s method of collecting the fees.
Gutierrez alleged that pursuant t o 28 U.S.C

. § 1915(b) ( 2 ) , ODOC
hist orically capped its collections at “ 20 percent of the precedin g month ’ s income credited to the prisoner ’ s account ” regardless of the number of

cases for which the inmate owed filing fees. However, G utierrez claim ed
that after he received his bankruptcy discharge, ODOC notified him for the
f i rst time that it would collect from his prisoner trust account 20% of his
income per la wsuit filed , i nstead of 20% total regardl ess of the number of

cases f iled

. Acc ording to Gutierrez , the ch anges in the O DOC ’ s collection
methods were bot h contract ually a nd constitutionally prohibited

.4 T he bankruptcy court pa r tially granted ODO C ’ s motion to dismiss the compl aint. I t dismissed Gutierrez ’ s dischargeability claim but decli ned
to dismiss the c ollection method claim, holding that th is claim was not yet ripe f o r consideration

. 3
Gutierrez then filed a m otion seeking entry of a def ault jud gment against ODOC or alternately seeking entry of summary judgment on his
survi ving cl aim challeng ing ODOC ’ s coll ection method . In support of his default judgment motion, Guti e rrez asserted that ODOC had not timely complied with the court ’ s d i recti on s re garding further proc eedings in the adversary proceeding . As for his summary judgm ent mot ion , Gutierr ez contended that he w as entitled to j ud gment as a matter of law on his
colle c tion method c laim. ODOC opposed Gutierrez ’ s motions and file d its own motion seeking to dismiss the remaining claim for l ack of jurisdiction. ODOC in relevant part pointed out th at Gutierrez ’ s collectio n method claim would
not have a ny conce ivable effect on his no ass et chapte r 7 case . The bankruptcy case had been fully administered back in Augu st 2019 , well
before Gutierrez comm enced his adversary proceeding

. T he bankruptcy court held a hearing on the partie s ’ motions. The

c ourt det er min ed that it lack e d jurisdiction over the survivi ng claim

3 Gutierrez has not challenge d on appeal the dismissal of his dischargeability clai m. In fact, he later admitted to the bank ru ptcy court t hat he “didn’t think [the f ees] were going to be discharged .” Hr’g Tr. (June 2 1, 2021) at 4:5

- 7.5 because the out come would not affect Gutierrez ’ s bankruptcy case or the bankruptcy estate

. Based on that dete rm ination, the bankruptcy court held that it lacked jurisdic tion to decide the collection method claim, de n ied
Gutierrez ’ s motions , a nd dismissed the adversary proceeding. On Ju ne 24, 2021, the bankruptcy court entered its order dismissing
the collect ion me thod clai m and denying Gutierrez ’ s motions for default judgment or for summary judgment. G utierre z timel y appealed

. JURISDICTION
The bank ruptcy court ’ s jurisdiction is addressed in th e disc ussion section, below . We have jurisdiction under 28 U.S.C. § 158.
ISSUE S
1. Did the bankruptcy court have juri sdic tion o v er Gutierrez ’ s collection

me thod claim ?
2. Did th e bankruptcy court abuse i ts disc retion by not retain ing jurisdiction over the collection method claim ?
STAN DARD S OF REVIEW
We review de no vo whether th e bankruptcy court had subject matter jurisdi ction over Gutierrez ’ s adversary proceeding

. Wilshire Court y ard v. Cal. Franchise Tax Bd. (In re Wilshire Courtyard ) , 729 F.3d 1279, 1284 (9th Cir. 2013) ; Alonso v. Summerville (In re Summerville) , 361 B.R. 133 , 139 (9th Cir.
BAP 2007)

.6 We review f or an a buse of discretion bankruptcy court de cision s

conce rning ret e ntion of jurisdiction after case di smissa l. See Linkway Inv. Co. v. Olsen (In re Casamont Invs., Ltd.), 196 B.R. 517, 521 (9th C ir. BAP 1 996)

. The ban kruptcy court a buse s its d iscretion when it applies an
incorrect legal r ule or when its factual findings a re illogical, implausible, or without sup port in the record. TrafficSchool.com, Inc. v. Edriver Inc. , 653 F.3d 820, 832 (9th Cir . 2011)

. DISCUSSION
G utierrez has asserted two arg uments on appeal. First, he ar gues that
the bankruptcy court had “ related t o ” jurisdiction over his cla im challenging ODOC ’ s debt collection metho ds. And second, he argues that
even if the b ankrupt cy court lacked “ related to ” j urisd iction over that claim, the cou rt should have “ retained ” jurisdiction to de ter mine whether
ODOC was p roperly collecti ng the nondischargeable court fees

. Gutierrez acknowledges that the bankruptcy case was fully administered long before he filed his adversary proceeding . He also
concedes th at his claim regarding the disch argeability of the underlying
de b t al read y had b een dismis sed. Ye t he insists the bankruptcy cour t
should have exerci sed its discretion t o keep and decide the collection
method claim because the court was “ alm ost finish ed ” adjudicating the
claim.
We address each of these arguments in tu r n.7 A. The ban kruptcy court did n ot have subject matter juri sdiction o ver Gutierrez ’ s collection met hod claim. “Bankruptcy courts have subject matter jurisdiction over proceedings ‘arising under t itle 11, or arising in or related to cases under title 11.’ ” In re Wilshire Courtyard , 729 F.3d at 12 85 (quoting 28 U.S.C. § 1334(b) )

. Gutierrez
has co nc eded th at his collection method claim did not arise under or aris e
in t he B ankruptcy Code

. However, as he notes, t he bankr uptcy court also has jurisdic tion ov er “ t hose proc eedings that are ‘rela ted to’ a bankruptcy
case.” Montana v. Goldin (In re Pegasus Gold Corp.) , 394 F.3d 1189, 1193 (9th
Cir. 2005)

. The bankruptcy c ourt typically has “related to” jurisdiction over
the claims state d in an adversary pr oceedin g wh e n “ the ou tcome could
alter the debtor ’ s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. ” Fietz v. Great W. Sav

. (I n re Fi etz) , 8 52 F.2d 455, 457 (9th Cir. 19 88) (clea ned up ) ( quo ting Pacor, Inc. v. Higgins , 743 F.2d 984, 994 (3d Cir. 1984) )

. Notwi thstanding the br oad scope of “ related to ” jurisd i ction , “bankruptcy courts have no jurisdiction over proceedings that ha ve no effect o n the estate of the debtor.” Celotex Corp. v. Edwards , 514 U.S. 300 , 308
& n. 6 (1995)

. O nce a chapter 7 bankruptcy esta te has been fully
admi nistered , most new a dversary proceeding s brought after that point fall beyon d t he scope of “ r elated to ” jurisdiction prec i s ely because there is no bankruptcy estate left fo r the new ad ve rsary pr oceedi ng to impact. Se e, e.g. ,8 Holcomb v. A ltagen ( In re Holcomb ) , BAP No. CC

- 17

- 1268

- KuTaS , 2018 WL
1976526 , at *7 ( 9 th Cir. BAP Apr. 25, 2018) ; In re Ketscher , Case No. 12

- 1708 8,
2014 WL 2 6 15177, at * 1

- 2 (Ba nkr. E.D. Cal. June 5, 2014) ; Ng v. Sterling P ac. Lend ing, I nc. ( In re Ng ) , Case No. 10

- 61392 RLE , 2011 WL 6133183, at *8 (Bankr. N.D. Cal. Dec. 8, 2011)

. 4
Gutierrez ’ s c ollection method claim ha d absolutely no impact on his fully admin i stered and formerl y closed bankrup tcy ca se. H e merely sought

to invoke non

- ba nkruptcy law to restrict or prohibit the manner in which
ODOC collected a nondischargeab le debt

. Gutierrez attempts to argue that the bankruptcy court ’ s “ related to ” juris dicti o n should be mea sur ed at a n earlier time

— before the full
administration of his bankruptcy case. But the la w is se ttled that jurisdiction is m easured at the time the adversary proceeding is

commen ced. See In re Casamont Invs., Ltd. , 196 B.R. a t 521 ( citin g In re Fi etz , 8 52 F.2d at 457 at n. 2 )

. In short , th e bankruptcy co urt correctly determ ined that it did not
have “ related to ” jurisdiction o ver the surviving collection method claim
Gutierrez assert ed in his adversary proceeding

.

4 There a re exc eptions to this rule. See , e.g. , McCowan v. Fraley ( In re McCowan ) , 296 B .R. 1, 3

– 4 ( 9th Cir. BAP 2003) ; see also § 554(d) (provi di ng that est a te assets n either abandon ed n or administered before closure of the case remain property of the est at e )

. But n one of these exceptions apply to Gutie rrez ’ s adversary proceeding

.9 B. The bankr uptcy c ourt d id not a buse i ts d iscretion by not retain ing jurisdic tion over the collect ion method claim

. Gutierrez also argues that the bankr uptcy co urt sh ould have

“ retained ” jurisdiction over his non

- bankruptcy cla im

. See Aplt ’ s Opn. Br

. at 4

- 5

. C i t i n g Rodri guez v

. Volpe n testa ( In re Volpentesta ) , 187 B.R. 261, 270 (Bankr. N.D. Ill. 1995) , he contends that the bankruptcy court was obligated

to co n sider judicial economy, fairness and convenience to the parties, and the degree of dif ficulty of th e related legal issue involved. See al so In re Casamont Invs., Ltd. , 196 B.R. at 521

. These decisions consider whether to retain jurisdiction over an existing adversary case after the underlying bankruptcy case is dismissed

. But Gu tierrez ’ s bankruptcy case was not dismissed

. It was fully
administ er ed and c losed well before he file d the adversary proceeding.
Casam ont , and s imilar cases , do not apply when the bankruptcy case has been fully disposed of before the adversary proceeding is c ommenced. See Sea Hawk Seafood s, Inc. v. A laska (In re Valdez Fis heries Dev

. Ass ’ n ) , 439 F.3d 545, 54 7

- 49 (9th Cir. 2006). Because Gutierrez ’ s bank r uptcy was closed
when he commenced his adversary proceeding , the bankruptcy court n ever had jurisdiction over th e collection method cla im

. Put bluntl y , there never

was any jurisdiction over that claim for the cou rt to retain , so it did not
abuse its discretion by dismissing th e claim

. Gu tier re z seems t o argue that the bankruptcy court should have
considered r etain ing jurisdiction over the c ollection m e tho d claim because10 it indisputably had jurisdiction o ver his dischargeability claim. Assuming without deciding that the bankruptcy c ourt had the discret ion to retai n jurisdiction over the collect ion method claim based on some sort of theory
of supplem enta l jur i s diction , Gutierrez has not persuad ed us that the bankruptcy court abused that discretion. A pplying the factors considered
in Casa mont as suggested by Gutierrez , the record abundantly
demonstrates that dismissal was warranted . L itigant s ca n not manufa c ture bankruptcy j urisdiction over a non

- bankruptcy claim by including that
claim together with a specious bankruptcy claim well after the underlyin g bankruptcy case has been administ ered.
C O NCLUSION

F or the reasons set forth abo ve, we AFF IRM t he bankrupt c y court ’ s adversary proceeding dismiss al order.