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Parker v. Bain (In re Parker)

Parker v. Bain (In re Parker)

United States Court of Appeals for the Ninth Circuit

May 9, 1995, Argued, Submitted, Pasadena, California ; September 28, 1995, Filed

No. 94-55123

Opinion

 [*1133]  OPINION

HALL, Circuit Judge:

Steven Parker was co-owner of a ship repair company. In order to prevent the company from financial ruin, he stole funds from his company's pension plan (the Plan) and transferred the funds into his company's general account. He was prosecuted and pleaded guilty to several federal [**2]  charges.

A complex round of civil litigation then ensued. This appeal involves Parker, the Plan, and Bank of America, which is the trustee of the Plan. The district court granted summary judgment in favor of the Plan on its claim that Parker had breached his fiduciary duty to the Plan, and dismissed for lack of standing Parker's claim that Bank of America breached its fiduciary duty to the Plan. Parker filed a voluntary Chapter 11 petition in bankruptcy and then appealed both decisions.

The district court had jurisdiction under 28 U.S.C. § 1331. The parties dispute whether this Court has jurisdiction over the appeal from the grant of summary judgment because Parker's notice of appeal may have been untimely. This Court has jurisdiction over the dismissal of Parker's claim against Bank of America under 28 U.S.C. § 1291. For the reasons that follow, we conclude that Parker's appeal from the grant of summary judgment against him is stayed by the automatic stay, but that his appeal from the dismissal of his claim against Bank of America is not. We affirm the dismissal of his claim against Bank of America.

Steven Parker was Vice President and eighty-percent owner of Pacific Ship [**3]  Repair and Fabrication, Inc. (Pac Ship), a San Diego company with approximately 400 employees. David Bain was President, CEO, and Chairman of the Board. Bain owned the remaining twenty percent.

Pac Ship experienced financial difficulties, prompting its creditors to file an involuntary petition in bankruptcy. In order to avoid  [*1134]  bankruptcy, 2 Parker and Bain conspired to and did embezzle approximately $ 1.4 million from Pacific Ship Repair and Fabrication Profit Sharing Savings Plan, their company's ERISA governed pension plan.

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68 F.3d 1131 *; 1995 U.S. App. LEXIS 27576 **; 95 Cal. Daily Op. Service 7577; Bankr. L. Rep. (CCH) P76,652; 95 Daily Journal DAR 12982

G. STEVEN PARKER, Plaintiff-Appellant, v. DAVID L. BAIN, Esq.; PACIFIC SHIP REPAIR & FABRICATION PROFIT SHARING PLAN, INC.; BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, Defendants-Appellees.

Prior History:  [**1]  Appeal from the United States District Court for the Southern District of California. D.C. No. CV-91-00378-IG. Irma E. Gonzalez, District Judge, Presiding.

CORE TERMS

Ship, fiduciary, district court, counterclaim, automatic stay, benefits, fiduciary duty, funds, grant of summary judgment, notice of appeal, breached, breach of fiduciary duty, declaratory relief, extinguished, appeals, damages, guilty plea, proceedings, prosecute, pension, summary judgment, colorable claim, de facto, discretionary, continuation, embezzlement, employees, vested

Bankruptcy Law, Administrative Powers, Automatic Stay, General Overview, Bankruptcy, Automatic Stay, Scope of Stay, Claims Against Debtors, Judicial Review, Examiners, Officers & Trustees, Duties & Functions, Capacities & Roles, Reorganizations, Debtors in Possession, Relief From Stay, Civil Procedure, Pleadings, Crossclaims, Counterclaims, Governments, Fiduciaries, Pensions & Benefits Law, ERISA, Fiduciaries, Admiralty & Maritime Law, Maritime Workers' Claims, Civil Litigation, Civil Litigation, Causes of Action, Breach of Fiduciary Duty, Labor & Employment Law, Employment Relationships, At Will Employment, Definition of Employees, Entry of Judgments, Stays of Judgments, Automatic Stays, Summary Judgment, Summary Judgment Review, Criminal Law & Procedure, Acts & Mental States, Mens Rea, Knowledge, Business & Corporate Compliance, Fiduciary Responsibilities, Prohibited Transactions, Self Dealing, Duty of Loyalty, ERISA Pension Plan Qualification Requirements, Participation & Vesting