                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 10 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


In re: CAPITAL OPTIONS, LLC,                     No.   16-60052

          Debtor,                                BAP No. 15-1165
______________________

CAPITAL OPTIONS, LLC,                            MEMORANDUM*

              Appellant,

 v.

C. DENNIS LOOMIS; BAKER
HOSTETLER, LLP,

              Appellees.


                           Appeal from the Ninth Circuit
                            Bankruptcy Appellate Panel
               Kurtz, Jury, and Jaime, Bankruptcy Judges, Presiding

                      Argued and Submitted October 17, 2017
                            San Francisco, California

Before: WALLACE, CALLAHAN, and NGUYEN, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      This is an appeal from the Bankruptcy Court’s dismissal of claims by

Capital Options, LLC (Capital) against an attorney, C. Dennis Loomis, and his law

firm, Baker Hostetler LLP (collectively Loomis). Capital alleged that it had an

interest in another organization, G2, LLC (G2), and that Loomis was a trustee of

G2 funds and thus had a non-waivable fiduciary duty to Capital. The Bankruptcy

Court, having dismissed Capital’s underlying adversary proceeding in which it

asserted its interest in G2, dismissed Capital’s complaint against Loomis. We have

jurisdiction under 28 U.S.C. § 158(d)(1), and affirm.

      A grant of a Federal Rule of Civil Procedure 12(b)(6) dismissal is reviewed

de novo. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010); see

also In re Tracht Gut, LLC, 836 F.3d 1146, 1150 (9th Cir. 2016) (“A motion to

dismiss in an adversary bankruptcy proceeding is governed by Federal Rule of

Bankruptcy Procedure 7012(b), which incorporates Federal Rule of Civil

Procedure 12(b)-(i)”). However, underlying factual findings are reviewed for

clear error. In re Retz, 606 F.3d 1189, 1196 (9th Cir. 2010).

      In a contemporaneously filed memorandum disposition in In re Capital

Options, LLC, No. 15-60054, we affirm the Bankruptcy Court’s dismissal of

Capital’s related adversary proceeding. Accordingly, as Capital has failed to

demonstrate an interest in G2, it has failed to show that Loomis, as a trustee of the


                                           2
G2 funds, has any fiduciary duty to it. The Bankruptcy Court’s dismissal of

Capital’s claims against Loomis is AFFIRMED.




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