In re: PETER THOMAS McCARTHY v. Nature’s Wing Fin Design, LLC

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, McCarthy’s
request for oral argument is denied.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: PETER THOMAS McCARTHY,
Debtor,
PETER THOMAS McCARTHY,
Appellant,
v.
NATURE’S WING FIN DESIGN, LLC,
Appellee.
No. 11-60069
BAP No. 10-1445
MEMORANDUM*
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Markell, and Brandt, Bankruptcy Judges, Presiding
Submitted October 9, 2012**
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
FILED
OCT 17 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-60069 2
Peter Thomas McCarthy appeals pro se from the Bankruptcy Appellate
Panel’s (“BAP”) judgment affirming the bankruptcy court’s order determining that
McCarthy’s debt to Nature’s Wing Fin Design, LLC was nondischargeable under
11 U.S.C. § 523(a)(4). We have jurisdiction under 28 U.S.C. § 158(d). We review
de novo BAP decisions, and apply the same standard of review that the BAP
applied to the bankruptcy court’s ruling. Boyajian v. New Falls Corp. (In re
Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). We review de novo the
bankruptcy court’s grant of summary judgment. Id. We affirm.
The bankruptcy court properly granted summary judgment on the basis of
issue preclusion because a prior, final state court decision between the parties
necessarily decided that McCarthy committed “defalcation while acting in a
fiduciary capacity” with respect to Nature’s Wing. 11 U.S.C. § 523(a)(4); Harmon
v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir. 2001) (explaining that
“[p]rinciples of collateral estoppel apply to proceedings seeking exceptions from
discharge brought under 11 U.S.C. § 523(a),” and setting forth issue preclusion
requirements under California law).
McCarthy’s reliance on Robi v. Five Platters, Inc., 838 F.2d 318 (9th Cir.
1988) is misplaced because the “last in time” rule discussed in the case is
inapplicable. See id. at 322-23.

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11-60069 3
The BAP did not abuse its discretion by declining to take judicial notice of
the facts within an order from another action involving Nature’s Wing. See Lee v.
City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001) (setting forth standard of
review and explaining that a court can take judicial notice of the existence of
another court’s opinions, but not of the truth of the facts recited therein).
McCarthy’s contentions concerning alleged due process violations, lack of
jurisdiction, and the relevance of the Rooker-Feldman doctrine to the bankruptcy
court’s and BAP’s decisions are unpersuasive.
We do not consider allegations raised for the first time on appeal, or issues
not explicitly and distinctly raised and argued in the opening brief. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
We grant McCarthy’s pending motion to file a substitute reply brief, and we
instruct the Clerk to file the reply brief received on July 12, 2012.
AFFIRMED.

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