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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

In re: JEFFREY A. CLARK; 

JODENE M. CLARK,

 Debtors,

JEFFREY A. CLARK; 

JODENE M. CLARK,

 Appellants,

 v.

MARTIN STRAND; 

GABRIELLE STRAND,

 Appellees,

UST- UNITED STATES TRUSTEE, 

SAN FERNANDO,

No. 12-60051

BAP No. 11-1322

MEMORANDUM*

Appeal from the Ninth Circuit

Bankruptcy Appellate Panel

Kirscher, Hollowell, and Markell, Bankruptcy Judges, Presiding

Argued and Submitted February 7, 2014

Pasadena, California

FILED

FEB 25 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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

except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and CLIFTON, Circuit Judges, and COGAN, District

Judge.

** 

Jeffrey and Jodene Clark appeal from a decision by the Bankruptcy

Appellate Panel reversing an order by the bankruptcy court denying a motion by

Martin and Gabrielle Strand to reopen the Clarks’ Chapter 7 bankruptcy case. We

affirm the BAP decision.

This Court conducts de novo review of a BAP decision. In re Burnett, 435

F.3d 971, 975 (9th Cir. 2002). This means that we review the bankruptcy court’s

denial of a motion to reopen a bankruptcy case for abuse of discretion. In re

DeVille, 361 F.3d 539, 547 (9th Cir. 2004); In re Weiner, 161 F.3d 1216, 1217 (9th

Cir. 1998).

The BAP was correct that the bankruptcy court applied the wrong standard

to the motion to reopen. “[R]eopening a case is typically ministerial and presents

only a ‘narrow range of issues.’” In re Lopez, 283 B.R. 22, 26 (9th Cir. BAP 2002)

(quoting In re Menk, 241 B.R. 896, 916-17 (9th Cir. BAP 1999)). Inquiries into

the merits of the underlying claim are inappropriate. Staffer v. Predovich (In re

Staffer), 306 F.3d 967, 972 (9th Cir. 2002). 

 ** The Honorable Brian M. Cogan, United States District Judge for the

Eastern District of New York, sitting by designation.

2
The basis upon which the bankruptcy court concluded that the Strands

lacked standing was not entirely clear. At the outset of the hearing, the court stated

that the Strands lacked standing because they had dismissed their claim in state

court, but as the BAP decision explained, that dismissal was without prejudice and

did not extinguish their claim. The Clarks have offered other arguments why they

believe the Strands should not be treated as a “party in interest” under Fed. R.

Bankr. P. 5010, such as that the claim is barred by laches or the running of the

limitations period, but no court has adjudicated those arguments. The Clarks might

be right in arguing that the Strands’ claims are barred or lack merit, but such an

inquiry is inappropriate at this stage. See Maya v. Centex Corp., 658 F.3d 1060,

1068 (9th Cir. 2011) (“[t]he jurisdictional question of standing precedes, and does

not require, analysis of the merits”).

Each side shall bear its own costs of appeal.

AFFIRMED and REMANDED.

3
##### 



Exhibit 32.2 CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906
OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of Hyperion Solutions Corporation (the
Company) on Form 10-K for the year ended June 30, 2004 as filed with the
Securities and Exchange Commission on the date hereof (the Report), I, David
W. Odell, Chief Financial Officer of the Company, certify, pursuant to 18
U.S.C. section 1350, as adopted pursuant to section 906 of the Sarbanes-Oxley
Act of 2002, that:  (1)
    
    The Report fully complies with the requirements of section
13(a) or 15(d) of the Securities Exchange Act of 1934; and(2)
    
    The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations
of the Company. Dated: September 13, 2004 /s/ DAVID W. ODELLDavid W. OdellChief Financial Officer
# Official Journal L 133/2017

| | ISSN 1977-0677 |
| --- | --- |
| Official Journal
  of the European Union | L 133 |
| | |
| English edition | Legislation | Volume 6022 May 2017 |

ISSN 1977-0677

Official Journal

of the European Union

L 133

English edition

Legislation

Volume 6022 May 2017

---

| Contents | | I   Legislative acts | page |
| --- | --- | --- | --- |
| | | REGULATIONS |
| | * | Regulation (EU) 2017/850 of the European Parliament and of the Council of 17 May 2017 amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (Ukraine) | 1 |

Contents

I   Legislative acts

page

REGULATIONS

*

Regulation (EU) 2017/850 of the European Parliament and of the Council of 17 May 2017 amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (Ukraine)

1

| EN | Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.
  The titles of all other Acts are printed in bold type and preceded by an asterisk. |
| --- | --- |

EN

Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.

The titles of all other Acts are printed in bold type and preceded by an asterisk.
[Cite as State ex rel. DeDonno v. Mason, 128 Ohio St.3d 412, 2011-Ohio-1445.] 

THE STATE EX REL. DEDONNO, APPELLANT, v. MASON, JUDGE, APPELLEE. 

[Cite as State ex rel. DeDonno v. Mason, 

128 Ohio St.3d 412, 2011-Ohio-1445.] 

A dismissal other than on the merits ordinarily does not prevent a party from 

refiling the action and thus is ordinarily not a final, appealable order — 

Court of appeals’ judgment denying writ of mandamus to compel judge to 

issue a final, appealable order affirmed.

(No. 2010-1903 — Submitted March 23, 2011 — Decided March 31, 2011.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

Nos. 95431 and 95498, 2010-Ohio-4903. 

__________________ 

Per Curiam.

{¶ 1} We affirm the judgment of the court of appeals denying appellant 

Gregory Smith DeDonno’s request for a writ of mandamus to compel appellee, 

Cuyahoga County Court of Common Pleas Judge Lance T. Mason, to issue a 

final, appealable order in a civil case instituted by DeDonno. 

{¶ 2} Judge Mason acted within his discretion to dismiss the case 

because of DeDonno’s failure to comply with a court order. See Civ.R. 41(B)(1). 

The action was dismissed without prejudice, which, by rule, is not a final, 

appealable order. See Civ.R. 41(B)(3). “Ordinarily, a dismissal ‘other than on 

the merits’ does not prevent a party from refiling and, therefore, ordinarily, such a 

dismissal is not a final, appealable order.” Natl. City Commercial Capital Corp. 

v. AAAA At Your Service, Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, 868 N.E.2d 

663, ¶ 8. Extraordinary relief in mandamus is thus not available. 

Judgment affirmed. 
SUPREME COURT OF OHIO

2

 O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. 

__________________ 

 Gregory Smith DeDonno, pro se. 

 William D. Mason, Cuyahoga County Prosecuting Attorney, and Charles 

E. Hannan, Assistant Prosecuting Attorney, for appellee. 

______________________
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#### In the Matter of Bernard W. Goonewardena, Appellant, v State of New York Workers’ Compensation Board, Respondent.

[943 NYS2d 884]—

Order and judgment (one paper), Supreme Court, New York County (Walter B. Tolub, J.), entered October 15, 2009, which denied the petition brought pursuant to CELR article 78 seeking, inter alia, to annul respondents’ determination dated July 2, 2008 terminating petitioner’s probationary employment and dismissed the proceeding, unanimously affirmed, without costs.

It is well-settled that a probationary employee may be discharged without a hearing and without a statement of reasons, in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation of law *(see Matter of Swinton v Safir,*93 NY2d 758, 762-763 [1999]; *Matter of York v McGuire,*63 NY2d 760, 761 [1984]). Evidence in the record regarding petitioner’s unsatisfactory completion of his duties provide a rational basis for respondent’s determination, particularly since petitioner received ample opportunity to improve *(see Matter of Johnson v Katz,*68 NY2d 649, 650 [1986]; *Matter of Bienz v Kelly,*73 AD3d 489 [2010]). No substantial issue was raised by petitioner’s al*639legations purporting to show bad faith *(see Matter of Jones v New York City Health & Hosps. Corp.,*5 AD3d 338 [2004]). Thus, no hearing was required and the petition was properly-denied *(see Matter of Johnson,*68 NY2d at 650). Concur — Saxe, J.P., Sweeny, Acosta, Freedman and Román, JJ.
#### In the Matter of Ishmael Saladeen, Respondent, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Appellants.

— Judgment unanimously reversed, on the law, and petition dismissed. Memorandum: Petitioner was released on parole in 1981. On December 29, 1982 he was arrested for attempted murder, rape and related offenses. As a result he was charged with several violations of parole. At a *992preliminary parole revocation hearing held on January 19, 1983, probable cause was found that petitioner violated the conditions of his parole. The prosecutor in charge of the criminal case requested an adjournment of the final parole revocation hearing because he did not want the complaining witnesses to testify in advance of trial, thereby jeopardizing the criminal prosecution. As a result, the final hearing that was scheduled for February 10, 1983 was "postponed indefinitely.” On February 14, 1983 the Parole Board canceled petitioner’s delinquency "pending court determination”, but did not notify petitioner’s assigned counsel of the cancellation. On September 20, 1983 petitioner was convicted of the attempted murder and robbery charges and was sentenced to two indeterminate terms of *12Vi*to 25 years to be served concurrently with each other, but consecutively to the unserved portion of his prior sentence. New parole violation charges were lodged against petitioner based on the convictions. A final hearing was held on December 15, 1983 and on December 28, 1983, petitioner’s parole was revoked.

Petitioner commenced this proceeding pursuant to CPLR article 78 claiming he was denied a timely parole revocation hearing. Special Term granted the petition on the ground that the pendency of criminal charges did not justify curtailment of petitioner’s right to a timely hearing. The court held that the regulation allowing the Parole Board to cancel petitioner’s delinquency (9 NYCRR 8004.3 [e]) was "inconsistent” with the statutory requirement that a final hearing shall be held within 90 days of the finding of probable cause (Executive Law § 259-i [3] [f] [i]).

Special Term erred in granting the petition. The Parole Board has the right to cancel a delinquency and vacate a parole violation warrant at any time prior to the commencement of the final revocation hearing as long as three members of the Board state their reason in writing (9 NYCRR 8004.3 [e] [2]; *People ex rel. Williams v Rodriguez,*108 AD2d 1007, *Lv denied*65 NY2d 603). These requirements were met on February 14, 1983 when three Board members canceled petitioner’s delinquency "pending court determination” of the criminal charges. The Board’s failure to notify petitioner’s counsel of the cancellation of the delinquency does not render petitioner’s final revocation hearing untimely. Although such notice is preferable and usually given, it is not required by regulation or statute. Moreover, petitioner has suffered no prejudice because once the delinquency was canceled the revocation proceeding was terminated. (Appeal from judgment of Su*993preme Court, Wyoming County, Dadd, J. — art 78.) Present— Callahan, J. P., Doerr, Green, O’Donnell and Pine, JJ.
#### LOUNSBERY, Respondent, v. MILLER et al., Appellants.

(Supreme Court, Appellate Division, First Department.

October 25, 1907.)

Action by Henry H. F. Lounsbery against Mary F. Miller and another. J. J. Cunneen, for appellants. E. D. Eddy, for respondent

No opinion. Judgment and order affirmed, with costs. Order filed.
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