                                                                    FILED
                                                                     DEC 19 2013
 1                                                               SUSAN M. SPRAUL, CLERK
                                                                   U.S. BKCY. APP. PANEL
                                                                   OF THE NINTH CIRCUIT
 2
 3                    UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                              OF THE NINTH CIRCUIT
 5   In re:                           )      BAP No. CC-13-1256-DKiTa
                                      )
 6   JACQUELINE RODRIGUEZ,            )      Bk. No. 12-23296-SC11
                                      )
 7                       Debtor.      )      Adv. Proc. No. 13-01090-SC
     ________________________________ )
 8                                    )
     BLADE ENERGY PTY LTD.; CLAIRE    )
 9   ENERGY PTY LTD.; DEREK M.        )
     WILLSHEE; JAMES R. ZADKO,        )
10                                    )
                         Appellants, )
11                                    )
     v.                               )
12                                    )
     JACQUELINE RODRIGUEZ,            )      M E M O R A N D U M1
13                                    )
                         Appellee.    )
14   ________________________________ )
15                   Argued and Submitted on November 21, 2013
                              at Pasadena, California
16
                             Filed - December 19, 2013
17
                   Appeal from the United States Bankruptcy Court
18                     for the Central District of California
19            Honorable Scott C. Clarkson, Bankruptcy Judge, Presiding
20
     Appearances:     Todd B. Becker, Esq. argued for Appellants;
21                    Julian Bach, Esq. argued for Appellee.
22
     Before:    DUNN, KIRSCHER and TAYLOR, Bankruptcy Judges.
23
24        1
             This disposition is not appropriate for publication.
25   Although it may be cited for whatever persuasive value it may have
     (see Fed. R. App. P. 32.1), it has no precedential value. See 9th
26   Cir. BAP Rule 8013-1.

                                         1
 1         The bankruptcy court dismissed Appellants’ adversary proceeding
 2   with prejudice as a sanction for their failure, through counsel, to
 3   comply with initial discovery rules and the bankruptcy court’s local
 4   procedural rules.    We AFFIRM.
 5                                     I.   FACTS
 6   A.   Background
 7         Jacqueline Rodriguez filed a chapter 112 petition on
 8   November 20, 2012.   Blade Energy Pty Ltd. and its Chief Executive
 9   Officer, Derek M. Willshee, and Claire Energy Pty Ltd. and its Chief
10   Executive Officer, James R. Zadko (collectively, “Appellants”),
11   filed an adversary proceeding against Ms. Rodriguez on March 5,
12   2013, seeking a determination that an alleged debt Ms. Rodriguez
13   owed them was nondischargeable in her bankruptcy case pursuant to
14   §§ 523(a)(2)(A), (a)(2)(B), (a)(4), and (a)(6).3
15         Appellants’ claims against Ms. Rodriguez were based upon her
16   status and alleged actions as a shareholder and principal of
17   Olecram LLC (“Olecram”), which Ms. Rodriguez owned with her husband,
18
19         2
             Unless otherwise indicated, all chapter and section
     references are to the federal Bankruptcy Code, 11 U.S.C.
20   §§ 101-1532, all “Rule” references are to the Federal Rules of
21   Bankruptcy Procedure, Rules 1001-9037, all “Civil Rule” references
     are to the Federal Rules of Civil Procedure, and the Local Rules for
22   the Bankruptcy Court for the Central District of California are
     referred to as “LBR’s.”
23
           3
             Because this is an appeal on procedural grounds rather than
24
     substantive law, we do not quote the text of the statutes pursuant
25   to which Appellants were seeking relief in the adversary proceeding.
     It is sufficient to note that they implicate Ms. Rodriguez’s
26   discharge.

                                            2
 1   Flavio Rodriguez.4    Olecram is a California limited liability
 2   company which brokered large financial transactions for businesses
 3   in need of funding.
 4        Appellants alleged that, beginning in May 2006, they engaged
 5   the services of Olecram to secure operating capital in the form of
 6   secured loans.   They paid Olecram $500,000 to obtain a $200,000,000
 7   line of credit on their behalf to fund oil projects in Turkey.
 8   Appellants further alleged that, in exchange for this fee, they
 9   received false and fraudulent banking documents and guarantee
10   letters, but no funds.    They also alleged, without specifying how,
11   that they were lulled and beguiled into pursuing a second funding
12   opportunity through Olecram, such that in July of 2008 they paid
13   $250,000 to Olecram in order to obtain $20,000,000 in emergency
14   funding while waiting for receipt of the main loan proceeds.      Again,
15   Appellants received no loan funds as a result of the second payment
16   to Olecram.
17
          4
18           Appellants name Ms. Rodriguez as the defendant both in the
     caption and in the introductory paragraph of their complaint and
19   assert that they are seeking “redress for a scheme by which the
     defendant, acting in concert with other entities and individuals,
20   deceived and defrauded [Appellants] and misappropriated
21   [Appellants’] property.” In addition to Mr. Rodiguez and Olecram,
     Appellants name as the “other entities and individuals” involved in
22   the scheme JNDDC LLC, Jeffrey Spence, David McGirt and Julian Bach.
     Mr. Bach was Ms. Rodriguez’s attorney in the adversary proceeding
23   and continues as her counsel in this appeal. Mr. Bach also was
     counsel to Olecram and to Mr. and Ms. Rodriguez at all relevant
24
     times.
25          After identifying the “other entities and individuals,” the
     complaint thereafter alleges conduct of the “defendants,” not of
26   Ms. Rodriguez specifically.

                                        3
 1         Notwithstanding their lack of success in obtaining financing
 2   through Olecram’s efforts, in November of 2009, Appellants again
 3   sought Olecram’s assistance in obtaining a $10,000,000 loan to fund
 4   an oil project in Bakersfield, California.   Rather than paying a fee
 5   to Olecram for obtaining funds for the Bakersfield project on their
 6   behalf, the Appellants entered into an agreement with Olecram
 7   pursuant to which Olecram would receive a 50% interest in the
 8   Bakersfield project.   Ultimately, only $386,000 was obtained to
 9   finance the Bakersfield project.
10         Further, Appellants alleged they learned in June of 2010 that
11   these funds were not obtained from a lender who had agreed to
12   finance the Bakersfield project but instead from $1,500,000 that had
13   been misappropriated from a local real estate company.   Appellants
14   asserted that when they learned of the “defendants’” illegal and
15   fraudulent conduct, they removed “defendants” from the Bakersfield
16   project and terminated all business dealings with Ms. Rodriguez “and
17   her affiliates and cooperating persons and entities.”    The complaint
18   sought: (1) damages in the amount of $750,000, representing the fees
19   paid to Olecram to secure funding for the Turkey project, together
20   with lost prospective profits and damage to their business
21   reputation when the Turkey and Bakersfield projects collapsed
22   because of a lack of funding; and (2) a determination that the debt
23   represented by these damages was nondischargeable in Ms. Rodriguez’s
24   bankruptcy case.
25   B.   Procedure
26         Appellants served the adversary complaint and summons on

                                        4
 1   Ms. Rodriguez on March 7, 2013.   As required by the LBRs, Appellants
 2   served a copy of the bankruptcy court’s “Early Meeting of Counsel
 3   and Status Conference Instructions” (“Rule 26 Instructions”) with
 4   the summons and complaint.
 5        The Rule 26 Instructions notified all parties that compliance
 6   with LBR 7026-1 was required.   It further mandated that the parties
 7   were to meet and confer as contemplated by Civil Rule 26(f)
 8   (“Rule 26 Meeting”) “at least 21 days before the status conference
 9   date [(“Initial Status Conference”)] set forth in the summons” and
10   detailed what was to be discussed and accomplished at the Rule 26
11   Meeting.   The Rule 26 Instructions also directed the filing of a
12   Joint Status Report with respect to the Rule 26 Meeting “within the
13   time frames specified within Local Rule 7016-1(a)(2).”
14   Alternatively, the Rule 26 Instructions required Appellants to file
15   a Unilateral Status Report seven days prior to the Initial Status
16   Conference if Ms. Rodriguez had not filed and served an answer to
17   the complaint.
18        Paragraph 10 of the Rule 26 Instructions stated in bold print
19   the sanctions the bankruptcy court could impose if the Rule 26
20   Instructions were not complied with:
21       Failure to comply with these instructions may subject the
         responsible party and/or counsel to sanctions, which may
22       include dismissal of the adversary proceeding. The
         failure of either party to cooperate in the preparation or
23       timely filing of a Joint Status Report or appear at the
         status conference may result in the imposition of
24       sanctions under [Local Rule] 7016-1(f) or (g).
25        The summons provided notice that the Initial Status Conference
26   was set for May 23, 2013, thereby establishing May 2, 2013 as the

                                       5
 1   deadline for the Rule 26 Meeting, May 9, 2013 as the deadline for
 2   filing a Joint Status Report, and May 16, 2013 for filing a
 3   Unilateral Status Report if no Joint Status Report had been filed.
 4   The summons also provides an explicit warning of the consequences of
 5   failing to file a timely status report:
 6       You must comply with [Local Rule] 7016-1, which requires
         you to file a joint status report and to appear at a
 7       status conference. All parties must read and comply with
         the rule, even if you are representing yourself. You
 8       must cooperate with the other parties in the case and
         file a joint status report with the court and serve it on
 9       the appropriate parties at least 14 days before a status
         conference. A court-approved joint status report form is
10       available on the court’s website ([Local] form F 7016-
         1.1) with an attachment for additional parties if
11       necessary ([Local] form F 7016-1.1a). If the other
         parties do not cooperate in filing a joint status report,
12       you still must file with the court a unilateral status
         report and the accompanying required declaration instead
13       of a joint status report 7 days before the status
         conference. The court may fine you or impose other
14       sanctions if you do not file a status report. The court
         may also fine you or impose other sanctions if you fail
15       to appear at a status conference.
16   (Emphasis in original.)
17        Ms. Rodriguez did not file an answer to the complaint, but
18   instead, on April 4, 2013, filed a motion (“Dispositive Motion”)
19   asserting alternatively that the complaint should be dismissed for
20   failure to state a claim upon which relief could be granted or that
21   she was entitled to judgment as a matter of law.   The hearing on the
22   Dispositive Motion was set for the same time as the initial status
23   conference in the adversary proceeding.
24        The record reflects that Appellants opposed the Dispositive
25   Motion on May 2, 2013.    Of the documents filed in opposition,
26   however, only one was provided for our consideration on appeal.

                                        6
 1   That document is the “Declaration In Support of Request for Denial
 2   or Continuance of Summary Judgment Under [Civil Rule] 56(d)” (“First
 3   Becker Declaration”).   In the First Becker Declaration, Todd B.
 4   Becker, counsel for Appellants, asserted that the Dispositive Motion
 5   was “premature due to the total lack of discovery in this action”
 6   and that “discovery is essential to present further evidence to the
 7   court of a genuine dispute in this matter.”
 8        Significantly, after serving the summons and complaint,
 9   Mr. Becker took no action prior to the deadline for the Rule 26
10   Meeting to comply with the Rule 26 Instructions.   Mr. Bach sent
11   written correspondence to Mr. Becker on May 2, 2013, by both
12   facsimile transmission and U.S. Mail, in which he requested that the
13   Rule 26 Meeting be scheduled and that the Joint Status Report be
14   prepared.   Receiving no response, Mr. Bach sent follow-up
15   correspondence, again by facsimile transmission and U.S. Mail, on
16   May 6, 2013, with the same result.    In both letters, Mr. Bach
17   explicitly advised Appellants’ counsel of the requirements of the
18   bankruptcy court’s local rules with respect to the timing of the
19   Rule 26 Meeting and the filing of a Joint Status Report.
20        On May 9, 2013, Ms. Rodriguez filed a Unilateral Status Report
21   (“Rodriguez Status Report”) supported by the Declaration of Mr. Bach
22   (“Bach Declaration”), which advised the bankruptcy court that no
23   Rule 26 Meeting had taken place, and that “Counsel for Plaintiffs
24   has been totally non-responsive regarding the Rule 26 [Meeting]
25   and/or [Local Rule] 7026-1 making it difficult for [Ms. Rodriguez]
26   to speculate as to how it is that she has any debt to these

                                       7
 1   ‘Plaintiffs’ and/or that any such debt is nondischargeable.”    The
 2   Rodriguez Status Report and the Bach Declaration were served on
 3   Mr. Becker.
 4        Mr. Becker finally sent Mr. Bach a letter via facsimile
 5   transmission on May 14, 2013 (“May 14 Letter”), outlining
 6   Appellants’ views on the issues to be discussed at the Rule 26
 7   Meeting.5   That letter proposed that initial disclosures be made
 8   within 14 days following the Rule 26 Meeting and requested dates for
 9   taking the depositions of both Ms. Rodriguez and Mr. Rodriguez.     In
10   response to the May 14 Letter, Mr. Bach left voice mail messages for
11   Mr. Becker on both May 15 and May 16, requesting a Rule 26 Meeting
12   by telephone.   Although those messages asked for a return telephone
13   call and expressed hope that a Joint Status Report still could be
14   prepared, Mr. Becker did not contact Mr. Bach on either of those
15   dates.   Mr. Becker alleged that he called Mr. Bach’s office twice
16   after sending the May 14 Letter, finally leaving a voice mail
17   message for Mr. Bach on May 17, 2013.   The record reflects that
18   Mr. Bach did not respond to that voice mail message because he was
19   out of the office on May 17.6   However, Mr. Bach sent Mr. Becker a
20
21        5
             The May 14 Letter appears to suggest that there was nothing
22   to discuss at a Rule 26 Meeting because the claims and positions of
     the parties were, in Mr. Becker’s view, adequately set forth in the
23   Dispositive Motion and Appellants’ opposition thereto.
24        6
             At Mr. Becker’s request, Mr. Bach provided a letter
25   confirming that Mr. Becker had left a voice mail message on May 17,
     2013. That letter also confirmed that Mr. Bach was out of the
26   office on that day.

                                       8
 1   letter on May 19, 2013, which again requested that Mr. Becker
 2   contact Mr. Bach and which also pointed out that no status report
 3   had been filed on behalf of Mr. Becker’s clients.
 4        Ultimately, the Rule 26 Meeting took place by telephone on
 5   May 20, 2013.    It was of limited usefulness.   Mr. Bach “got a fairly
 6   quick, clear impression that [Mr. Becker] had limited to no
 7   familiarity with the claims set forth in the Complaint.”      On May 20,
 8   2013, following the Rule 26 Meeting, Appellants filed their
 9   Unilateral Status Report (“Appellants’ Status Report”), indicating
10   that the Rule 26 Meeting had taken place on that same date.
11        On the afternoon before the Initial Status Conference, the
12   bankruptcy court posted its tentative ruling evincing an intent to
13   dismiss the adversary proceeding because Appellants had not filed a
14   status report.   At 6:00 p.m. on May 22, 2013, the evening before the
15   Initial Status Conference, Mr. Becker filed a declaration (“Second
16   Becker Declaration”) stating that the Appellants’ Status Report in
17   fact had been filed on May 20, 2013, and that a chambers copy had
18   been delivered “thereafter” to the bankruptcy court.7     The Second
19   Becker Declaration states that Appellants’ counsel had not earlier
20   had an opportunity to meet and confer.8   The Second Becker
21
22        7
             The messenger service delivered the copy on May 21, 2013 at
23   2:45 p.m., less that 48 hours prior to the Initial Status
     Conference.
24
          8
             Mr. Becker also served on May 22, 2013, a notice of
25   Ms. Rodriguez’s deposition, which he unilaterally set for June 27,
26   2013, because the timing of the deposition had not been discussed at
     the Rule 26 Meeting.

                                        9
 1   Declaration was cast in terms to suggest that Mr. Bach had been
 2   dilatory in facilitating the Rule 26 Meeting and in complying with
 3   the LBRs with respect to the filing of a status report.
 4        Mr. Bach filed a supplemental declaration (“Second Bach
 5   Declaration”) in support of the Rodriguez Status Report at 7:20 a.m.
 6   on the day of the Initial Status Conference, through which he
 7   informed the bankruptcy court of the numerous efforts he had
 8   undertaken to engage Mr. Becker in the Rule 26 process.
 9        On May 23, 2013, the bankruptcy court conducted the Initial
10   Status Conference, opening with a statement that it wanted to create
11   a time line for the record.   The bankruptcy court noted that
12   Appellants’ Status Report was filed only three days before the
13   Initial Status Conference.    The bankruptcy court then took issue
14   with the content of Appellants’ Status Report to the extent it
15   answered in the affirmative the question, “Have counsel met and
16   conferred in compliance with [Local Rule] 7026-1?"   Although
17   Mr. Becker initially (and vigorously) argued that he had complied
18   with the meet and confer requirements of the Civil Rules and the
19   LBRs, he ultimately (and reluctantly) conceded that he had not
20   “technically” complied because the Rule 26 Meeting was not conducted
21   within the time specified by the LBRs, nor was Appellants’ Status
22   Report timely filed.   The bankruptcy court also took Appellants’
23   counsel to task for the content of the Second Becker Declaration,
24   which “on a cold read” suggested that the only status report filed
25   in the adversary proceeding was Appellants’ Status Report.
26        The bankruptcy court then asked Mr. Becker to explain the



                                        10
 1   circumstances that prevented him from having an earlier opportunity
 2   to meet and confer with opposing counsel as averred in the Second
 3   Becker Declaration.   Mr. Becker responded that his failure to meet
 4   and confer timely was the result of an error in calendaring
 5   deadlines in the adversary proceeding.   When the bankruptcy court
 6   suggested that the several attempts Mr. Bach had made to alert
 7   Mr. Becker to the required deadlines and his responsibilities in
 8   relation to those deadlines undercut any “excuse” of miscalendering,
 9   Mr. Becker blamed his lack of compliance on the failure of his
10   associate to advise him of Mr. Bach’s communications.9   He then
11   assured the bankruptcy court that both the calendaring issue and the
12   communication issue within his office had been resolved upon review
13   of the bankruptcy court’s tentative ruling.
14        Notwithstanding Mr. Becker’s request that the bankruptcy court
15   impose monetary sanctions upon him rather than impose a dismissal
16   sanction to the detriment of his clients, the bankruptcy court
17   dismissed the adversary proceeding with prejudice.10   While the
18   bankruptcy court created the time line to establish a record that in
19
20        9
             Mr. Bach pointed out for the record that Mr. Becker had
21   stated in the First Becker Declaration: “I . . . am counsel for
     plaintiff [sic] in this adversary action. I have handled this case
22   since its inception.”
23        10
             In commenting on the fact that the adversary proceeding was
     dismissed with prejudice, the bankruptcy court stated: “And I’ll
24
     tell you why it’s with prejudice. It has nothing to do with my
25   determination, it’s because you can’t file it again. You’re out of
     time on the statute of limitations.” Tr. of May 23, 2013 Hr’g at
26   29:5-8. See Rule 4007(c).

                                       11
 1   the adversary proceeding, Appellants had wholly failed to comply
 2   with the time requirements of the Civil Rules and the Local Rules in
 3   the pretrial proceedings, the bankruptcy court also expressed a
 4   desire to address a “systemic” issue by imposing greater sanctions
 5   than the monetary sanctions it typically imposed on counsel, which,
 6   in the view of the bankruptcy judge, had proven ineffective both
 7   over time and in the case before him.11              Appellants filed a timely
 8   notice of appeal from the dismissal order.
 9                                  II.    JURISDICTION
10        The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334
11   and 157(b)(2)(b) and (k).       We have jurisdiction under 28 U.S.C.
12   § 158.
13                                        III.    ISSUE
14        Whether the bankruptcy court abused its discretion when it
15   dismissed the adversary proceeding with prejudice.
16                            IV.    STANDARDS OF REVIEW
17            The bankruptcy court’s dismissal of an adversary proceeding
18   based upon plaintiffs’ failure to prosecute is reviewed for an abuse
19   of discretion.    Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir.
20   1996); Moneymaker v. CoBEN (In re Eisen), 31 F.3d 1447, 1451 (9th
21   Cir. 1994).
22        We apply a two-part test to determine whether the bankruptcy
23
24        11
             “My intention and my inclination is to dismiss this case.
25   I’m tired. I am just tired of in and out, daily, people don’t –
     they’re not caring about the Local Rules.” Tr. of May 23, 2013 Hr’g
26   at 16:20-22.

                                                 12
 1   court abused its discretion.       United States v. Hinkson, 585 F.3d
 2   1247, 1261-62 (9th Cir. 2009)(en banc).      First, we consider de novo
 3   whether the bankruptcy court applied the correct legal standard to
 4   the relief requested.   Id.    Then, we review the bankruptcy court’s
 5   fact findings for clear error.      Id. at 1262 & n.20.     We must affirm
 6   the bankruptcy court's fact findings unless we conclude that they
 7   are “(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in
 8   inferences that may be drawn from the facts in the record.’”        Id.
 9   “Under the ‘clear error’ standard, we accept findings of fact unless
10   the findings leave ‘the definite and firm conviction that a mistake
11   has been committed by the trial judge.’”         Wolkowitz v. Beverly
12   (In re Beverly), 374 B.R. 221, 230, aff’d in part & dismissed in
13   part, 551 F.3d 1092 (9th Cir. 2008), citing Latman v. Burdette,
14   366 F.3d 774, 781 (9th Cir. 2004).
15                                 V.    DISCUSSION
16        Resolution of this appeal requires an examination of the
17   interplay between and among various Civil Rules, Rules, and LBRs
18   which operate to ensure the efficient adjudication of adversary
19   proceedings.
20        Rule 7016 provides that Civil Rule 16 applies in adversary
21   proceedings.   Civil Rule 16(a) identifies several purposes for
22   setting pretrial conferences, such as the Initial Status Conference
23   in the instant dispute.   Those purposes relevant to this appeal
24   include expediting disposition of the adversary proceeding and
25   establishing early and continuing control so that the adversary
26   proceeding will not be protracted because of lack of management.



                                           13
 1   See Civil Rule 16(a)(1) and (2).   LBR 7016-1 serves to implement
 2   Civil Rule 16's purposes in adversary proceedings, and provides:
 3       7016-1. STATUS CONFERENCE, PRETRIAL, AND TRIAL PROCEDURE
 4       (a) Status Conference. In any adversary proceeding, the
         clerk will issue a summons and notice of the date and time
 5       of the status conference.
 6       (1) Who Must Appear. Each party appearing at any status
         conference must be represented by either the attorney (or
 7       party, if not represented by counsel) who is responsible
         for trying the case or the attorney who is responsible for
 8       preparing the case for trial.
 9       (2) Contents of Joint Status Report. Unless otherwise
         ordered by the court, at least 14 days before the date set
10       for each status conference the parties are required to
         file a joint status report discussing the following:
11            (A) State of discovery, including a description of
                  completed discovery and detailed schedule of
12       all further discovery then contemplated;
              (B) Deadline for all discovery to be completed,
13                including the date by which all responses to
                  discovery requests are due;
14            (C) A schedule of then contemplated law and motion
                  matters;
15            (D) Prospects for settlement;
              (E) A proposed date for the pretrial conference
16                and/or the trial;
              (F) Whether counsel have met and conferred in
17       compliance with LBR 7026-1, and if so, the date
                  of the conference;
18            (G) Any other issues affecting the status or
                  management of the case; and
19            (H) Whether the parties are interested in
         alternative dispute resolution.
20
         (3) Unilateral Status Report. If any party fails to
21       cooperate in the preparation of a joint status report and
         a response has been filed to the complaint, each party
22       must file a unilateral status report not less than 7 days
         before the date set for each status conference, unless
23       otherwise ordered by the court. The unilateral status
         report must contain a declaration setting forth the
24       attempts made by the party to contact or obtain the
         cooperation of the non-complying party.
25
26        Rule 7026 provides that Civil Rule 26 applies in adversary


                                        14
 1   proceedings.   Civil Rule 26 provides in relevant part:
 2       (f) Conference of the Parties; Planning for Discovery.
         (1) Conference Timing. Except in a proceeding exempted
 3       from initial disclosure under [Civil] Rule 26(a)(1)(B) or
         when the court orders otherwise, the parties must confer
 4       as soon as practicable - and in any event at least 21 days
         before a scheduling conference is to be held . . . .
 5
 6   LBR 7026-1 sets out in detail the obligations of the parties to an
 7   adversary proceeding to participate in discovery.
 8       LBR 7026-1. DISCOVERY
 9       (a) General. Compliance with [Rule] 7026 and this rule is
         required in all adversary proceedings.
10
         (1) Notice. The plaintiff must serve with the summons and
11       complaint a notice that compliance with [Rule] 7026 and
         this rule is required.
12
         (2) Proof of Service. The plaintiff must file a proof of
13       service of this notice together with the proof of service
         of the summons and complaint.
14
         (b) Discovery Conference and Disclosures.
15
         (1) Conference of Parties. Unless all defendants default,
16       the parties must conduct the meeting and exchange the
         information required by [Rule] 7026 within the time limits
17       set forth therein.
18       (2) Joint Status Report. Within 7 days after such meeting,
         the parties must prepare a joint status report containing
19       the information set forth in LBR 7016-1(a)(2). The joint
         status report will serve as the written report of the
20       meeting required by [Rule] 7026.
21        The consequences of failing to comply with the foregoing Rules,
22   Civil Rules, and LBRs also are explicit within their terms.
23   LBR 7016-1 provides:
24       (f) Sanctions for Failure to Comply with Rule. In addition
         to the sanctions authorized by [Civil Rule] 16(f), if a
25       status conference statement or a joint proposed pretrial
         stipulation is not filed or lodged within the times set
26       forth in subsections (a), (b), or (e), respectively, of


                                       15
 1       this rule, the court may order one or more of the
         following:
 2
         (1) A continuance of the trial date, if no prejudice is
 3       involved to the party who is not at fault;
 4       (2) Entry of a pretrial order based [upon] conforming
         party’s proposed description of the facts and law;
 5
         (3) An award of monetary sanctions including attorneys’
 6       fees against the party at fault and/or counsel, payable to
         the party not at fault; and/or
 7
         (4) An award of non-monetary sanctions against the party
 8       at fault including entry of judgment of dismissal or the
         entry of an order striking the answer and entering a
 9       default.
10       (g) Failure to Appear at Hearing or Prepare for Trial. The
         failure of a party’s counsel (or the party, if not
11       represented by counsel) to appear before the court at the
         status conference or pretrial conference, or to complete
12       the necessary preparations therefor, or to appear at or to
         be prepared for trial may be considered an abandonment or
13       failure to prosecute or defend diligently, and judgment
         may be entered against the defaulting party either with
14       respect to a specific issue or as to the entire
         proceeding, or the proceeding may be dismissed.
15
16   (Emphasis added.)   LBR 7026-1(4) provides:
17       (4) Cooperation of Counsel; Sanctions. The failure of any
         counsel either to cooperate in this procedure, to attend
18       the meeting of counsel, or to provide the moving party the
         information necessary to prepare the stipulation required
19       by this rule within 7 days of the meeting of counsel will
         result in the imposition of sanctions, including the
20       sanctions authorized by [Civil Rule] 7037 and LBR 9011-3.
21   (Emphasis added.)
22        It is undisputed that Appellants were required to participate
23   in the Rule 26 Meeting no later than May 2, 2013, and that they were
24   to file either a Joint Status Report no later than May 9, 2013, or a
25   Unilateral Status Report no later than May 16, 2013.    They met none
26   of these deadlines.   Appellants emphasize that while the deadlines


                                       16
 1   were not met, a Rule 26 Meeting was held and a Unilateral Status
 2   Report was filed before the Initial Status Conference.    They assert
 3   that dismissal of the adversary proceeding was an excessive
 4   sanction, particularly in light of the fact that the adversary
 5   proceeding had been pending for less than three months and the
 6   dismissal occurred at the Initial Status Conference.
 7        It is true that “[d]ismissal is a harsh penalty and is to be
 8   imposed only in extreme circumstances.”   Henderson v. Duncan,
 9   779 F.2d 1421, 1423 (9th Cir. 1986).   “Nevertheless, we will
10   overturn a dismissal sanction only if we have a definite and firm
11   conviction that it was clearly outside the acceptable range of
12   sanctions.”   Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th
13   Cir. 1987)(citation omitted).
14        As the Ninth Circuit stated in Malone, there are five factors a
15   trial court must weigh in determining whether to dismiss a case for
16   lack of prosecution.   These include: (1) the public’s interest in
17   expeditious resolution of litigation; (2) the court’s need to manage
18   its docket; (3) the risk of prejudice to the defendant; (4) the
19   public policy favoring disposition of cases on their merits; and
20   (5) the availability of less drastic sanctions.   Malone, 833 F.2d
21   130; Thompson v. Hous. Auth., 782 F.2d 829, 832 (9th Cir.), cert.
22   denied, 479 U.S. 829 (1986).
23        Because the bankruptcy court did not make explicit findings to
24   show it specifically considered the Malone factors in imposing a
25   dismissal sanction, we review the record independently.   Malone,
26   833 F.2d at 130.   In this case, standing alone in Appellants’ favor


                                       17
 1   is the public policy favoring disposition of cases on their merits.
 2   Notwithstanding this factor, the record supports the imposition of
 3   the dismissal sanction.
 4           First, as identified above, the expeditious resolution of
 5   litigation and the court’s need to manage its docket are two of the
 6   express purposes of Civil Rule 16, pursuant to which the obligations
 7   on Appellants arose.       Judicial resources are stretched thin.
 8   Without procedural rules to manage and move voluminous caseloads
 9   through the system, the public interest will suffer.        As the adage
10   goes:        “Justice delayed is justice denied.”   The record reflects
11   that Mr. Becker requested a continuance of resolution of the
12   Dispositive Motion on the basis that discovery was needed at a time
13   when he still was two weeks away from initiating any attempt to
14   comply with the Rule 26 Meeting requirement.
15           Second, the bankruptcy court clearly considered the adequacy of
16   less drastic sanctions.12       The bankruptcy court stressed that the
17   problem of missed deadlines had become systemic.        That Mr. Becker
18   did not take seriously the obligations imposed upon his clients by
19   the collective rules governing pretrial proceedings in adversary
20   proceedings until dismissal of the adversary proceeding was imminent
21
22
             12
             A warning that failure to follow a procedure can result in
23   dismissal of an adversary proceeding supports a determination that a
     court has considered alternative sanctions. See Buss v. Western
24
     Airlines, Inc., 738 F.2d 1053, 1054 (9th Cir. 1984), cert. denied,
25   469 U.S. 1192 (1985). LBR 7016-1(f) and (g) and LBR 7026-1(4) all
     provided notice that dismissal was a possible sanction for
26   noncompliance with the rules.

                                            18
 1   is evident in the record.    Not only did Mr. Becker not heed the
 2   Rule 26 Instructions or the specific requirements of the various
 3   iterations of [Civil Rules] 16 and 26, he also ignored the multiple
 4   attempts by Mr. Bach to gain his cooperation in moving the adversary
 5   proceeding forward.    When challenged by the bankruptcy court on his
 6   missteps, Mr. Becker had difficulty understanding, in effect, what
 7   all the fuss was about.    This lack of comprehension of the impact of
 8   dilatory practice on the operation of a trial court is exactly why a
 9   sanction stronger than a monetary sanction was warranted in this
10   case.    As observed by the bankruptcy court, in a finding that we are
11   not in a position to challenge, the practice culture of the bar that
12   appears before the bankruptcy court appears to have relegated
13   monetary sanctions for noncompliance with procedural rules to a cost
14   of doing business.
15           Third, the failure to prosecute the adversary proceeding in
16   accordance with the rules governing the initial discovery conference
17   and the formulation of a joint status report prejudiced
18   Ms. Rodriguez.    As stated in the Rodriguez Status Report,
19   Ms. Rodriguez filed the Dispositive Motion because she did not
20   believe she owed any obligation to Appellants.    Mr. Becker’s
21   non-responsiveness regarding the Rule 26 Meeting made it difficult
22   for Ms. Rodriguez to speculate “how it is that she has any debt to
23   [Appellants] and/or that any such debt is nondischargeable.”     The
24   fact that the pending adversary proceeding implicated
25   Ms. Rodriguez’s discharge required vigilant prosecution to ensure
26   prompt resolution.

                                         19
 1                             VI.    CONCLUSION
 2        In light of the Malone factors, we do not have a definite and
 3   firm conviction that the dismissal sanction was clearly outside the
 4   acceptable range of sanctions.   Chism v. Nat’l Heritage Life Ins.
 5   Co., 637 F.2d 1328, 1331 (9th Cir. 1981).     Accordingly, we AFFIRM.13
 6
 7
 8
 9
10
11
12
13
14
15
16
          13
             Shortly before oral argument in this appeal, the Appellants
17   filed the “Declaration of Garrett M. Brief, Esq. Re: Current Status
18   Of Underlying Bankruptcy Case” (“Brief Declaration”). The Brief
     Declaration advised, among other things, that Ms. Rodriguez’s
19   chapter 11 case had been converted to chapter 7 by order entered on
     November 19, 2013. At oral argument, Appellants cited Classic Auto
20   Refinishing, Inc. v. Marino (In re Marino), 181 F.3d 1142, 1144-46
21   (9th Cir. 1999), as establishing the qualified proposition that the
     conversion of a bankruptcy case from chapter 11 to chapter 7
22   authorizes the filing of a new nondischargeability complaint in the
     chapter 7 case, notwithstanding that a nondischargeability complaint
23   had been filed but subsequently dismissed with prejudice as untimely
     in the chapter 11 case. See Rule 1019(2)(A).
24
            The subsequent conversion of the case does not render the
25   bankruptcy court’s decision to declare the dismissal of the
     adversary proceeding “with prejudice” on limitations grounds error
26   within the context of the appeal before us.

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