In re: ANDREW LINTON v. Colpo Talpa, LLC, 1429 Grant Avenue LLC, Jeries Azar, and Munir Shahin

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ANDREW LINTON,
Debtor,
______________________________
ANDREW LINTON,
Appellant,
v.
COLPO TALPA, LLC, 1429 GRANT
AVENUE LLC, JERIES AZAR, AND
MUNIR SHAHIN
Appellees.
No. 21-60053
BAP No. NC-201175 KTB
Bk. No. 3:18-bk-30773
MEMORANDUM*
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Klein, Taylor, and Brand, Bankruptcy Judges, Presiding
Submitted November 16, 2022**
San Francisco, California
Before: McKEOWN and KOH, Circuit Judges, and SESSIONS,*** 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 William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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After a bankruptcy court dismissed two involuntary petitions against him,
appellant Andrew Linton sought costs and damages under 11 U.S.C. § 303(i).
During the § 303(i) proceeding, Linton filed a motion to add three non-petitioners
to the action. The bankruptcy court denied the motion, Linton appealed, and, in a
published decision, the Bankruptcy Appellate Panel affirmed. See In re Linton,
631 B.R. 882, 887 (B.A.P. 9th Cir. 2021). We affirm.1
As we must, we first address our jurisdiction to hear Linton’s appeal. See
United States v. Bastide-Hernandez, 39 F.4th 1187, 1190 (9th Cir. 2022) (en banc).
We have jurisdiction under the doctrine of cumulative finality: while the appeal
was pending, the bankruptcy court entered a final judgment in the § 303(i)
proceeding, belatedly curing Linton’s otherwise incognizable appeal. See Rains v.
Flinn (In re Rains), 428 F.3d 893, 900–01 (9th Cir. 2005).
With our jurisdiction established, we turn next to the relevant standards of
review. We review the decision of the bankruptcy court without deference to the
Bankruptcy Appellate Panel decision. See Khan v. Barton (In re Khan), 846 F.3d
1058, 1062–63 (9th Cir. 2017). In reviewing the bankruptcy court’s decision, we
review legal questions de novo and factual findings for clear error. See Brace v.
Speier (In re Brace), 979 F.3d 1228, 1232 (9th Cir. 2020). We review a
1 The parties are familiar with the facts of this case, so we include them only
as necessary to resolve the appeal.

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bankruptcy court’s determination about the sufficiency of service of process de
novo. See Rubin v. Pringle (In re Focus Media, Inc.), 387 F.3d 1077, 1081 (9th
Cir. 2004).
1. We begin our analysis of Linton’s appeal by clarifying its scope and
consequences. Before this court, as before the Bankruptcy Appellate Panel, Linton
argues at length that the bankruptcy court erred by rescinding its bad faith
determination against petitioner Colpo Talpa, LLC. However, Linton did not
appeal that decision, and that order is not before us.
In the alternative, Linton argues that once this appeal was filed, the
bankruptcy court lost jurisdiction to reconsider its bad faith determination. Here,
the denial of Linton’s motion to join non-petitioners was not a final order because
it did not “definitively dispose” of the dispute over costs and damages. Harrington
v. Mayer (In re Mayer), 28 F.4th 67, 70 (9th Cir. 2022). Linton’s appeal of a non-
final order did not deprive the court of jurisdiction: “the trial court retains
jurisdiction to enter final judgment.” In re Rains, 428 F.3d at 903–04. Therefore,
the bankruptcy court had jurisdiction to address the bad faith determination while
this appeal was pending.
2. We now address the sole subject of Linton’s appeal, the denial of his
motion to add non-petitioners. We conclude that the bankruptcy court did not err
in denying the motion because Linton failed to properly serve it and, as a result, the

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court lacked personal jurisdiction over the non-petitioners.
“Before a federal court may exercise personal jurisdiction over a defendant,
the procedural requirement of service of summons must be satisfied.” Omni
Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). It is the burden
of the party responsible for process to show that service was sufficient. See 4A
Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1083 (4th ed.
2022); see also Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). In this
case, the proper modes for service of process are established by Federal Rules of
Bankruptcy Procedure 9014 and 7004. See In re 701 Mariposa Project, LLC, 514
B.R. 10, 16 (B.A.P. 9th Cir. 2014). Linton served the non-petitioners by electronic
service through CM/ECF to counsel for Colpo Talpa. As the bankruptcy court
concluded and Linton concedes, this is not a proper method of providing service
unless the non-petitioners waived service or authorized Colpo Talpa’s attorneys to
serve as their agents for accepting service.
Linton offers no evidence that the non-petitioners waived service or
authorized Colpo Talpa’s counsel to receive service of process as their agent.
Instead, Linton relies exclusively on an e-mail to Colpo Talpa’s counsel to
establish agency. In that e-mail, Linton’s counsel wrote, “I presume . . . that
[counsel for Colpo Talpa] are authorized agents for service of our motion papers
on [the three non-petitioners] and Colpo Talpa . . . under Rule 7004. Please advise

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me ASAP if this not what you intended.” Counsel for Colpo Talpa did not reply,
and Linton provides no evidence that any of the non-petitioners were aware of the
e-mail.
Linton makes a number of additional arguments about service of process,
none of which have merit. First, Linton argues that the bankruptcy court should
have granted Colpo Talpa’s request to withdraw or waive any jurisdictional
challenge to the motion. At the hearing, counsel for Colpo Talpa said, “I realize
I’m here on behalf of CT [Colpo Talpa]. But is it possible for us to withdraw or
waive the jurisdictional argument so that we don’t wind up in a situation where
we’re doing this over again?” It is not clear from this single question that Colpo
Talpa was withdrawing or waiving any argument. Moreover, as counsel for Colpo
Talpa acknowledged, he was present “on behalf of [Colpo Talpa],” not the non-
petitioners. Thus, he could not waive service of process for parties he did not
represent.
Second, Linton’s claim that the bankruptcy court should not have addressed
the adequacy of service of process because counsel for Colpo Talpa never
challenged it is at odds with our precedent. See Tuli v. Rep. of Iraq (In re Tuli),
172 F.3d 707, 712 (9th Cir. 1999) (“When entry of judgment is sought against a
party who has failed to plead or otherwise defend, a district court has an
affirmative duty to look into its jurisdiction over . . . the parties.”).

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Third, Linton argues that the court should have granted the motion as
unopposed because Colpo Talpa lacked standing to contest it. Colpo Talpa was
already a party to the action and did not need to separately prove its standing to
challenge each motion in the litigation. See Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 173–74 (2000) (emphasizing that standing
is a requirement at start of suit, not an on-going requirement post-commencement).
Fourth, Linton argues that the bankruptcy court wrongly concluded that he
needed to commence an adversary proceeding to properly serve the non-
petitioners. However, the bankruptcy court did not deny the motion on this basis.
Even if it had, the rules governing service of process are the same for contested
matters and adversary proceedings, so Linton would have failed to properly serve
the motion regardless. See Fed. R. Bankr. P. 9014(b) (incorporating Rule 7004,
which governs service in adversary proceedings, into contested matters).
Finally, Linton argues that even if he failed to comply with the rules
governing service of process, the trial court should have dismissed the motion
without prejudice and allowed him to properly serve non-petitioners. Linton cites
no binding authority for this argument, and his motion was not dismissed with
prejudice. Thus, the bankruptcy court did not err.
3. Because the failure to properly serve the non-petitioners with service of
process is sufficient to affirm the bankruptcy court’s order, we decline to address

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the bankruptcy court’s alternative bases for denying the motion.
AFFIRMED.

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