NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: SARKIS ANTABIAN,

Debtor,

______________________________

SARKIS ANTABIAN,

Appellant,

v.

WELLS FARGO BANK, N.A.,

Appellee. No. 17

- 60001

BAP No. 16

- 1129

MEMORANDUM *

Appeal from the Ninth Circuit

Bankruptcy Appellate Panel

Kirscher, Pappas, and Faris, Bankruptcy Judges, Presiding

Submitted February 6, 2018 **

Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and PRATT, *** District

Judge.

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

except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Robert W. Pratt, United States District Judge for the

Southern District of Iowa, sitting by designation. 

# FILED

FEB 8 2018

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2

Sarkis Antabian appeals a judgment by the Ninth Circuit Bankruptcy

Appellate Panel (“BAP”), which affirmed the bankruptcy court’s dismissal of

Antabian’s adversary complaint against Wells Fargo Bank, N.A. (“Wells Far go”)

under Federal Rule of Civil Procedure 41(b)

. 1 We have jurisdiction under 28

U.S.C. § 158(d) and affirm.

1. We agree with Antabian and the BAP that the sale of the subject

property during the pendency of Antabian’s appeal to the BAP does not render the

case moot. As the BAP pointed out, “the foreclosure sale generated cash proceeds,

which were paid to Wells Fargo,” and “[t]he issue of Wells Farg o’s entitlement to

those proceeds remains a live controversy.”

2. We “review [] decisions of the BAP de novo and appl [y] the same

standard of review that the BAP applied to the bankruptcy court’s ruling.” In re

Deitz , 760 F.3d 1038, 1039 (9th Cir. 2014) (order )

. We review a di smissal under

Rule 41(b) for abuse of discretion. In re Phenylpropanolamine (PPA) Prod. Liab.

Litig. , 460 F.3d 1217, 1226 (9th Cir. 2006) (en banc)

. Although dismissal is a

harsh penalty, “ w e will overturn a dismissal sanction only if we have a definite and

firm conviction that it was clearly outside the acceptable range of sanctions.” Id.

1 Anta

bian also appealed from a separate, but identical BAP judgment.

The other case, No. 17

- 60002, is resolved by a separate memorandum disposition.3

(quoting Malone v. U.S. Postal Serv. , 833 F.2d 128, 130 (9th Cir. 1987)).

The bankruptcy court applied the correct legal standard under Rule 41(b)

.

See In re Phenylpropanolamine , 460 F.3d at 1226 (discussing factors a court

should consider in determining whether to dismiss under Rule 41(b)). The

bankruptcy court made explicit findings as to each of the essential factors,

concluding that four of the five factors weighed in favor of dismissal. The court’s

analysis of the relevant factors is reasonable and supported by the record.

Although the facts do not compel dismissal, the bankruptcy court did not abuse its

discretion in electing to do so. 2

AFF IRMED.

2 Because Wells Fargo ’s motion to dismiss and the bankruptcy court’s

order were based on Rule 41(b), we reje ct Antabian’s argument that the dismissal

of his adversary complaint is governed by Rule 37, in stead of Rule 41(b).