                                                                             FILED
                             NOT FOR PUBLICATION                              OCT 17 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



In re: PETER THOMAS McCARTHY,                    No. 11-60069

                Debtor,                          BAP No. 10-1445


PETER THOMAS McCARTHY,                           MEMORANDUM *

                Appellant,

  v.

NATURE’S WING FIN DESIGN, LLC,

                Appellee.



                            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.




          *
             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.
      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.


                                           2                                   11-60069
      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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