NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re:

BRENDA M. JOHNSON, 

 Debtor. 

BAP Nos. WW-23-1190-BSG

 WW-23-1195-BSG

 WW-23-1199-BSG

 (Related Appeals) 

Bk. No. 3:15-bk-41795-BDL

Adv. No. 3:23-ap-04031-BDL

 

MEMORANDUM∗

BRENDA M. JOHNSON, 

 Appellant, 

v.

ALBERTSONS COMPANIES, INC.; 

AMAZON.COM SERVICES, LLC; 

EQUIFAX INFORMATION SERVICES, 

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 

FILED

SEP 9 2024

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
2

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 72 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, 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. 
3

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.
4

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, 
5

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
6

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 28 U.S.C. §§ 1334 and

157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158.

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. 
7

All. United Ins. Co. v. Krasnoff (In re Venegas), 623 B.R. 555, 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., 103 F.4th 732, 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), 505 B.R. 914, 917 (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), 503 

B.R. 804, 810 (9th Cir. BAP 2014), aff'd, 836 F.3d 1146 (9th Cir. 2016). We 

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

Phillips v. Ornoski, 673 F.3d 1168, 1179 (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), 622 B.R. 749, 757 (9th Cir. BAP 2020) (citing 

Ringgold-Lockhart v. Cnty. of L.A., 761 F.3d 1057, 1062 (9th Cir. 2014); Molski v. 

Evergreen Dynasty Corp., 500 F.3d 1047, 1056 (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, 585 F.3d 

1247, 1261-62 (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. 
8

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., 697 F.3d 1059, 1070-71 (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.), 80 F.4th 901, 905 (9th Cir. 2023) (citing Fondiller v. 

Robertson (In re Fondiller), 707 F.2d 441, 443 (9th Cir. 1983)), cert. denied sub 

nom., 144 S. Ct. 1064 (2024). As a threshold matter, Ms. Johnson has not 

shown that by entry of the order she suffered an "injury in fact." See id. at 906 

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

"adversely affected pecuniarily" by the order. See In re Fondiller, 707 F.2d at 

442. 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, 697 F.3d at 1070-71. 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.
9

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., 29 F.4th 611, 618 (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, 697 F.3d at 1070-71.

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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (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." Id. (citing 

Twombly, 550 U.S. at 556). A complaint must contain "[f]actual allegations 

[sufficient] to raise a right to relief above the speculative level." Twombly, 550 

U.S. at 555. 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, 66 F.3d 193, 199 (9th 
10

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

remedy is dismissal. Doe v. Fed. Dist. Ct., 467 F. App'x 725, 727 (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, 534 F.3d 1116, 1121 (9th Cir. 

2008) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (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, 375 F.3d 

951, 954 (9th Cir. 2004) (noting that a Civil Rule 12(b)(6) motion to dismiss 

must be made before the responsive pleading – i.e., answer).
11

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, 697 F.3d 

at 1070-71. 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, 2020 WL 5814365, 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), 545 F.3d 

764, 776-77 (9th Cir. 2008), overruled on other grounds by Law v. Siegel, 571 U.S. 

415 (2014), as recognized by Nichols v. Marana Stockyard & Livestock Mkt., Inc. (In 

re Nichols), 10 F.4th 956, 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, 
12

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 
13

F.2d 242, 247 (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., 953 F.3d 567, 574 (9th Cir. 2020) (citing Foman 

v. Davis, 371 U.S. 178, 182 (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, 503 B.R. at 815; see also Flowers 

v. First Hawaiian Bank, 295 F.3d 966, 976 (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 
14

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 
15

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.