NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT REISH; KATHLEEN REISH; 

RYUKO, INC., 

Appellants, 

 v. 

PHOENIX HELIPARTS, INC.; PHOENIX 

HELIPARTS, INC. LIQUIDATION 

TRUST; LOUIE MUKAI, 

Appellees, 

 v. 

AZERBAIJAN MINISTRY OF DEFENSE, 

Proposed Intervenor, 

Movant.

No. 20-17329 

D.C. No. 2:20-cv-00554-DLR 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

Argued and Submitted November 17, 2021

Phoenix, Arizona

Before: MURGUIA, Chief Judge, and CLIFTON and BRESS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

DEC 23 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Plaintiff-Appellant Robert Reish (“Reish”) seeks to vacate or reverse two 

orders in an adversary proceeding against Defendant-Appellee Louie Mukai, the 

Chapter 11 trustee (“Trustee”) for Debtor Phoenix Heliparts, Inc. (“PHP”). The 

first order avoided the transfer of a helicopter from PHP to Reish and required 

Reish to return the value of the helicopter to the estate. The second order 

determined that Reish could not claim relief under Federal Rule of Civil Procedure 

60(b) and must return $2.15 million to PHP’s estate, notwithstanding a $2.1 

million judgment against Reish in a separate but related case. We have jurisdiction 

under 28 U.S.C. § 158(d)(1), and we affirm both orders.

Reish first challenges the district court’s denial of relief under Rule 60(b). 

Reish argues that a judgment entered against him in favor of the Azerbaijan 

Ministry of Defense (“AMOD”) in a separate breach-of-contract action (the 

“AMOD Judgment”) constituted a “material change in circumstances” under Rule 

60(b)(5) that warranted vacatur of the district court’s order affirming Reish’s 

obligation to pay $2.15 million to PHP’s estate.

We review an appeal from denial of Rule 60(b) relief for abuse of discretion. 

Henson v. Fid. Nat’l Fin., Inc., 943 F.3d 434, 443 (9th Cir. 2019). A court can 

“modify or vacate a judgment or order” under Rule 60(b)(5) “if a significant 

change either in factual conditions or in law renders continued enforcement 

detrimental to the public interest.” Horne v. Flores, 557 U.S. 433, 447 (2009) 
3 

(citation and internal quotation marks omitted). Here, the district court did not 

abuse its discretion in concluding that the AMOD Judgment did not constitute 

either “information that the [district] [c]ourt overlooked” or “new facts or legal 

authority otherwise justifying reconsideration.” First, Reish does not dispute that 

he knew about the AMOD action while separately challenging his obligation to 

return $2.15 million to PHP’s estate. Although it was foreseeable that Reish could 

be found separately liable both (1) to PHP’s estate (as the initial transferee of the 

aircraft) and (2) to AMOD (as the supplier of a non-conforming good), Reish 

failed to interplead the proceeds from his sale of the aircraft or otherwise 

consolidate the separate actions. Second, after this court upheld the AMOD 

Judgment, see Azer. Ministry of Def. v. Reish, 815 F. App’x 180 (9th Cir. 2020), 

Reish provided the district court with a copy of the Ninth Circuit’s disposition. 

Thus, the district court was aware of this development and, by its own 

acknowledgment, “considered [Reish’s] supplemental material” when, two months 

later, it affirmed the bankruptcy court’s order directing Reish to turn over $2.15 

million to PHP’s estate. For these reasons, the district court did not abuse its 

discretion in concluding that Reish had not established a significant change in 

factual circumstances, and therefore was not entitled to relief under Rule 60(b)(5)

or any other subsection of Rule 60(b).

In addition, Reish challenges the district court’s affirmance of the 
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bankruptcy court’s avoidance order, which invalidated PHP’s transfer of the 

aircraft to Reish and held that Reish was liable to PHP’s estate for the value of the 

aircraft. Reish argues that he held a “special property” interest in the aircraft under 

Arizona state law, and that this interest takes priority over the Trustee’s powers in 

bankruptcy. 

This court’s “role in a bankruptcy appeal is essentially the same as that of 

the district court, [and] thus, we directly review the bankruptcy court’s decision.” 

In re Icenhower, 757 F.3d 1044, 1049 (9th Cir. 2014) (citations and internal 

quotation marks omitted). The court reviews the bankruptcy court’s factual 

findings under the clearly erroneous standard, In re Rifino, 245 F.3d 1083, 1086 

(9th Cir. 2001), and reviews “conclusions of law and mixed questions of law and 

fact de novo,” In re Icenhower, 757 F.3d at 1049.

The bankruptcy court correctly concluded that the Helicopter Purchase 

Agreement (“HPA”) between PHP and Reish was a mixed contract involving both 

goods and services. Where, as here, “the transaction at issue includes both goods 

and services, most courts,” including those in Arizona, “seek to determine whether 

the predominant aspect and purpose of the contract is the sale of goods or the 

providing of services,” Double AA Builders, Ltd. v. Grand State Constr. L.L.C., 

114 P.3d 835, 841–42 (Ariz. Ct. App. 2005), “and then apply the UCC only if the 

sale of goods predominates,” Sidi Spaces LLC v. Aluminum Trailer Co., No. 19-
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CV-1476, 2020 WL 6799262, at *9 (D. Ariz. Oct. 22, 2020) (citation omitted) 

(applying Arizona law). 

The record amply supports the bankruptcy court’s finding that the 

predominant aspect of the HPA was the provision of services, rather than the sale 

of goods. For example, PHP’s president, Tina Cannon, testified that the work 

needed to render the helicopter airworthy was “substantial” and required 

“thousands and thousands” of labor hours. The HPA required the aircraft to be 

“repaired to [Reish’s] specifications,” and “required significant work by PHP” in 

order for the aircraft “to be recertified as airworthy and to meet Reish’s contract 

specifications.” Moreover, PHP’s services in restoring the aircraft accounted for 

approximately 70 percent of the total contract price, while parts accounted for only 

30 percent. In light of this evidence, the bankruptcy court did not err in 

determining that the predominant purpose of the HPA was the provision of 

services. See Generations Ranch, LLC v. Zarbock, No. 1 CA-CV 10-0771, 2012 

WL 161814, at *5 (Ariz. Ct. App. Jan. 19, 2012) (finding, under Arizona law, that

a contract was predominantly one for goods where “the majority of the [c]ontract 

price . . . [was] for goods rather than services”). 

Because the transaction between PHP and Reish predominantly involved the 

provision of services rather than the sale of goods, Arizona’s Uniform Commercial 

Code does not govern the transaction, and Reish cannot claim a “special property” 
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interest pursuant to this statute. See Ariz. Rev. Stat. Ann. § 47-2102 (noting that 

Arizona UCC “applies to transactions in goods”); see also Sidi Spaces, 2020 WL 

6799262, at *9. At the time PHP filed its bankruptcy petition, the aircraft Reish 

had contracted for therefore remained property of the bankruptcy estate. See 11 

U.S.C. § 541(a)(1) (stating that a bankruptcy filing creates an estate comprised of 

“all legal or equitable interests of the debtor in property as of the commencement 

of the case”). Under § 549 of the Bankruptcy Code, a trustee may avoid a transfer 

of estate property “that occurs after the commencement of the [bankruptcy] case” 

and that was not authorized by the court. 11 U.S.C. § 549(a)(1), (2)(B); see also In 

re Straightline Invs., Inc., 525 F.3d 870, 877 (9th Cir. 2008). Here, it is undisputed 

that a post-petition transfer occurred without the permission of the bankruptcy 

court. Thus, the Trustee was entitled to avoid this transfer under § 549 and recover 

the value of the property under 11 U.S.C. § 550. 

In light of this conclusion, we need not reach the bankruptcy court’s 

alternative reasoning under 11 U.S.C. § 544.1

AFFIRMED. 

1 Appellants’ Motion to Supplement the Record, filed July 2, 2021 (Docket 

No. 33) is granted.