                                                             FILED
                                                             AUG 21 2017
 1                         NOT FOR PUBLICATION
 2                                                      SUSAN M. SPRAUL, CLERK
                                                          U.S. BKCY. APP. PANEL
                                                          OF THE NINTH CIRCUIT
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
                              OF THE NINTH CIRCUIT
 4
 5   In re:                        )      BAP No. CC-13-1282-TaKuPa
                                   )
 6   MARCELO BRITTO GOMEZ,         )      Bk. No. 2:11-bk-26905-TD
                                   )
 7                   Debtor.       )      Adv. No. 2:11-ap-02360-RK
     ______________________________)
 8                                 )
     CARTER STEPHENS,              )
 9                                 )
                     Appellant,    )
10                                 )
     v.                            )      MEMORANDUM*
11                                 )
     MARCELO BRITTO GOMEZ; UNITED )
12   STATES TRUSTEE,               )
                                   )
13                   Appellees.    )
     ______________________________)
14
                     Argued and Submitted on July 27, 2017
15                          at Pasadena, California
16                          Filed – August 21, 2017
17             Appeal from the United States Bankruptcy Court
                   for the Central District of California
18
         Honorable Thomas B. Donovan, Bankruptcy Judge, Presiding
19
20   Appearances:     Appellant Carter Stephens argued pro se; Douglas
                      Crowder argued for appellee Marcello Britto
21                    Gomez.
22
     Before:   TAYLOR, KURTZ, and PAPPAS,** Bankruptcy Judges.
23
24
          *
25           This disposition is not appropriate for publication.
     Although it may be cited for whatever persuasive value it may
26   have (see Fed. R. App. P. 32.1), it has no precedential value.
     See 9th Cir. BAP Rule 8024-1(c)(2).
27
          **
28           The Honorable Jim D. Pappas, United States Bankruptcy
     Judge for the District of Idaho, sitting by designation.
 1                                INTRODUCTION
 2        Seven months after Carter Stephens filed a dischargeability
 3   adversary complaint against chapter 71 debtor-defendant Marcelo
 4   Gomez, the bankruptcy court dismissed it for lack of
 5   prosecution.    In that time, Stephens and his attorney had done
 6   virtually nothing to move the case forward.    By contrast, Debtor
 7   had, by and large, diligently defended and participated in the
 8   case.    As it turns out, Stephens’s relationship with his
 9   attorney had soured.    On remand from the Ninth Circuit, we
10   determine that the bankruptcy court properly dismissed the case
11   for lack of prosecution.    We reject Stephens’s argument that
12   only his attorney was responsible for the delay and inattention
13   that led to dismissal.    The bankruptcy court repeatedly
14   admonished Stephens that he needed to prosecute the case.      He
15   did not do so.    Accordingly, we AFFIRM.
16                                   FACTS2
17        Stephens retained attorney Lori Smith to represent him in
18   litigation against Debtor.    After Debtor filed a chapter 7 case,
19   Smith — on Stephens’s behalf — filed a § 523(a)(2)(A) and (a)(6)
20
21
          1
             Unless otherwise indicated, all chapter and section
22   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
     All “Bankruptcy Rule” references are to the Federal Rules of
23
     Bankruptcy Procedure, all “Civil Rule” references are to the
24   Federal Rules of Civil Procedure, and all “LBR” references are
     to the Local Bankruptcy Rules of the United States Bankruptcy
25   Court for the Central District of California.
26        2
             We exercise our discretion to take judicial notice of
27   documents electronically filed in the adversary proceeding. See
     Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R.
28   227, 233 n.9 (9th Cir. BAP 2003).

                                       2
 1   nondischargeability complaint.3   After that, however, Smith’s
 2   activity in the case was sporadic at best.
 3        The September 1 status conference.    The bankruptcy court
 4   scheduled an initial status conference for September 1, 2011,
 5   under LBR 7016-1(a).4   Debtor filed an LBR 7016-1 status report5
 6   before the hearing; Stephens filed nothing.    Similarly, Debtor
 7   and his counsel appeared at the initial status conference; Smith
 8   did not.    Neither Smith nor anyone from Smith’s office explained
 9   her non-attendance to the bankruptcy court (or to Stephens, for
10   that matter).    The bankruptcy court continued the status
11   conference to the end of the month.
12        After the bankruptcy judge continued the hearing, he
13   learned that Stephens was present.    At that time, he explained
14   to Stephens that Smith failed to appear and also failed to file
15   a required pre-hearing status report.    Further, he disclosed to
16   Stephens that Debtor’s status report mentioned a possible
17   settlement, which allegedly failed based on Stephens’s change of
18   mind.    Stephens expressed surprise at this news and indicated
19
20        3
             The complaint alleged fraud stemming from a business
21   partnership dispute between the parties.
22        4
             LBR 7016-1(a) and (a)(2) provide that the bankruptcy
     clerk issues a summons and notice of the status conference and
23
     that the parties are required to file a joint status report at
24   least 14 days prior to each scheduled conference.
          5
25           Debtor’s counsel’s declaration stated that Smith’s
     office emailed a joint report on August 12, 2011 that was
26   essentially blank on Stephen’s end and was not executed by Smith
27   or anyone at Smith’s office. Consequently, when filed, it was
     deemed a unilateral status report by Debtor pursuant to
28   LBR 7016-1(a)(3).

                                       3
 1   that he was unaware of any settlement discussions.
 2        Stephens then inquired whether he, in fact, was represented
 3   by Smith.   In response, the bankruptcy court stated:
 4        Well, you have a couple options. You can fire
          Ms. Smith and hire another lawyer or you can fire
 5        Ms. Smith and represent yourself. One way or the
          other, you have to do something to move this case
 6        ahead from your stand point, and one way or another
          Ms. Smith has some obligations. I would suggest you
 7        start by talking to Ms. Smith. If that’s a dead end,
          then why don’t you [pick] up the phone and call
 8        [Debtor’s counsel] and see what you can work out.
 9   Hr’g Tr. (Sept. 1, 2011) 10:10-17.
10        Stephens advised that he had called Smith multiple times,
11   to no avail, and that he did not trust Smith.   The bankruptcy
12   court emphasized that Stephens was obligated as the plaintiff to
13   file a status report as required by the local bankruptcy rules,
14   irrespective of Smith’s deficient representation.
15        The September 29 status conference.   Smith filed a status
16   report two weeks after the initial status conference.    Both
17   Smith and Stephens appeared at the September 29, 2011 status
18   conference.   The bankruptcy judge reemphasized the obligations
19   of the parties in the adversary proceeding to prosecute and
20   defend the case expeditiously.   He also warned both parties that
21   failure to do so could lead to appropriate sanctions.    Hr’g Tr.
22   (Sept. 29, 2011) 6:1-4 (“If the Plaintiff drops the ball, I can
23   dismiss the lawsuit.   If the Defendant drops the ball, I can
24   preclude the Defendant from offering evidence down the road in
25   the lawsuit.”).   But he highlighted that the responsibility was
26   ultimately on Smith as counsel for Stephens, the plaintiff, to
27   move the case along.   The bankruptcy judge set a discovery
28   cutoff deadline and directed Smith to lodge a proposed

                                      4
 1   scheduling order.    Smith, in turn, represented that the parties
 2   sought mediation and that a proposed mediation order would be
 3   filed.    The hearing concluded with the bankruptcy judge
 4   reiterating his frustration with the case because of the lack of
 5   reports and warning that the case may be heading toward
 6   dismissal.
 7        Notwithstanding the bankruptcy court’s orders and Smith’s
 8   representations, Smith filed nothing.    Sometime during this time
 9   frame, however, Stephens filed a complaint against Smith with
10   the State Bar of California.
11        The February 2 status conference and case dismissal.      In
12   anticipation of a continued status conference in February of
13   2012, Debtor’s counsel filed another unilateral LBR 7016-1
14   status report.6   Neither Smith nor Stephens filed a status
15   report.    Consequently, Debtor moved to dismiss the adversary
16   proceeding with prejudice pursuant to LBR 7041-1 and Civil
17   Rule 41(b).    Among other things, he argued that Stephens’s
18   failure to comply with either the discovery deadline or LBR
19   7016-1 warranted dismissal.    The motion to dismiss was scheduled
20   for hearing in mid-February.
21        At the status conference in early February, the bankruptcy
22   judge began by noting that the case was seven months old.
23
          6
24           Once again, Debtor’s counsel’s declaration provided that
     she had twice contacted Smith’s office regarding the joint
25   report but did not hear back in time to timely file a joint
     report as required by the local rules. LBR 7016-1(a)(3)
26   provides that if a party fails to cooperate in preparing a joint
27   status report and an answer has been filed, the parties must
     each submit a unilateral status report at least seven days
28   before the scheduled conference.

                                      5
 1   Despite this age, he concluded:
 2        [T]he Plaintiff has [pretty consistently] not complied
          with our Local Rules. The Plaintiff has not taken
 3        the active role that plaintiffs are supposed to take.
          Plaintiffs are supposed to prosecute their lawsuits,
 4        and they’re supposed to do it diligently, and they’re
          supposed to do it by sharing information with the
 5        other side by talking to the other side, by initiating
          status reports, by doing that on a timely basis, by
 6        doing that before every hearing. And in this case,
          and we are now on our – we’re on our third hearing,
 7        but we’ve pretty consistently not had much of a
          showing of any compliance with the standards that I’ve
 8        outlined from the Plaintiff’s side.
 9   Hr’g Tr. (Feb. 2, 2012) 1:22-2:8.        Debtor, by contrast, the
10   bankruptcy judge remarked, “has fairly consistently taken the
11   initiative to take care of its side of the bargain by filing
12   reports.”   Id. at 2:9-11.
13        The bankruptcy judge expressed his concern that, if the
14   matter went to trial in two weeks as Debtor wanted, then because
15   of Stephens’s disorganization and ineffective prosecution,
16   “we’ll have a mess of a trial on our hands.”        Id. at 3:5-14.
17   And he expressed his frustration that he was told the parties
18   were going to mediate, but a mediation order was never lodged,
19   and that the case was going to settle, but then it did not.
20        Smith then explained that “there has been a complete and
21   irredeemable breakdown of relationship between the client and
22   the attorney.”   Id. at 4:16–18.       And the discussion turned to
23   that topic.   Stephens, who spoke after Smith, concluded his
24   presentation by requesting time to find new counsel.
25        After hearing from both Stephens and Smith, the bankruptcy
26   judge orally dismissed the adversary proceeding based on lack of
27   diligent prosecution.   In addition to the above reasons, he
28   again noted that the case had been pending for seven months and

                                        6
 1   added: “for me to learn this at a status conference hearing, and
 2   not in formal pleadings from one side or the other, is
 3   inexcusable, and an inexcusable burden on the [Debtor], and on
 4   the legal process, and on this Court.”    Id. at 9:14-20.     On
 5   February 8, 2012, the bankruptcy court entered an order
 6   dismissing the adversary proceeding for lack of prosecution.
 7        Acting pro se, Stephens moved for reconsideration of the
 8   dismissal order on February 27, 2012.    He did not obtain a
 9   hearing date and did not properly notice or serve the motion.
10   Two days later, the bankruptcy judge denied the reconsideration
11   motion by writing “motion denied” on its face.     Stephens
12   appealed.
13        Stephens’s appeals.     In that first appeal, a BAP motions
14   panel determined that the appeal from the dismissal order was
15   untimely.   It limited the scope of the review to the order
16   denying the reconsideration motion.    Later, a BAP merits panel
17   vacated the order denying reconsideration and remanded to the
18   bankruptcy court for findings of fact and conclusions of law.
19        On remand, the bankruptcy judge prepared a memorandum
20   decision and supported his decision to deny relief from the
21   dismissal order based on both procedural deficiencies and
22   substantive legal grounds.    Stephens appealed.
23        In the second appeal, we affirmed the bankruptcy court’s
24   decision and concluded that the bankruptcy court did not abuse
25   its discretion in denying reconsideration under Civil Rule
26   60(b).   Stephens again appealed.
27        The Ninth Circuit then vacated and remanded; it determined
28   that we erred in limiting the scope of Stephens’s appeal to

                                       7
 1   reconsideration.   Thus, “[b]ecause the BAP did not reach the
 2   issue of whether the bankruptcy court properly dismissed
 3   Stephens’s adversary proceeding for failure to prosecute,” the
 4   Ninth Circuit remanded so we might consider the issue in the
 5   first instance.
 6                               JURISDICTION
 7        The bankruptcy court had jurisdiction under 28 U.S.C.
 8   §§ 1334 and 157(b)(2)(I).   We have jurisdiction under 28 U.S.C.
 9   § 158.
10                                  ISSUES
11        Whether the bankruptcy court erred in dismissing Stephens’s
12   adversary complaint for failure to prosecute.
13        Whether the bankruptcy court abused its discretion by
14   denying the reconsideration motion.
15                          STANDARDS OF REVIEW
16        We review the bankruptcy court’s dismissal of an adversary
17   proceeding based on a plaintiff’s failure to prosecute for an
18   abuse of discretion.   Olomi v. Tukhi (In re Tukhi), 568 B.R.
19   107, 112 (9th Cir. BAP 2017); Lee v. Roessler–Lobert
20   (In re Roessler–Lobert), 567 B.R. 560, 567 (9th Cir. BAP 2017).
21        We review the bankruptcy court’s denial of a motion for
22   reconsideration for an abuse of discretion.   Tracht Gut, LLC v.
23   Cnty. of L.A. Treasurer & Tax Collector (In re Tracht Gut, LLC),
24   503 B.R. 804, 809 (9th Cir. BAP 2014).
25        A bankruptcy court abuses its discretion if it applies the
26   wrong legal standard, misapplies the correct legal standard, or
27   if it makes factual findings that are illogical, implausible, or
28   without support in inferences that may be drawn from the facts

                                      8
 1   in the record.    See TrafficSchool.com, Inc. v. Edriver Inc.,
 2   653 F.3d 820, 832 (9th Cir. 2011) (citing United States v.
 3   Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).
 4        And we may “affirm on any ground supported by the record,
 5   regardless of whether the [bankruptcy] court relied upon,
 6   rejected, or even considered that ground.”     Fresno Motors, LLC
 7   v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014)
 8   (quotation marks omitted); Cigna Prop. & Cas. Ins. Co. v.
 9   Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998).
10                                DISCUSSION
11        The bankruptcy court dismissed the case for failure to
12   prosecute under Civil Rule 41(b).    Civil Rule 41(b), applied in
13   bankruptcy by Bankruptcy Rule 7041, provides that “[i]f the
14   plaintiff fails to prosecute . . ., a defendant may move to
15   dismiss the action or any claim against it.”      Fed. R. Civ.
16   P. 41(b).   Although the text only discusses a party’s motion,
17   the bankruptcy court has “the inherent power sua sponte to
18   dismiss a case for lack of prosecution.”     Henderson v. Duncan,
19   779 F.2d 1421, 1423 (9th Cir. 1986).      Although state of mind is
20   relevant when evaluating an excuse, no showing of bad faith is
21   required for the bankruptcy court to dismiss the case under its
22   inherent power.    In re Roessler-Lobert, 567 B.R. at 568 n.8.
23        “Dismissal [however] is a harsh penalty and is to be
24   imposed only in extreme circumstances.”     Id.   The bankruptcy
25   court must weigh several factors, known as the Henderson
26   factors: “(1) the public’s interest in expeditious resolution of
27   litigation; (2) the court’s need to manage its docket; (3) the
28   risk of prejudice to the defendants; (4) the public policy

                                      9
 1   favoring disposition of cases on their merits[,] and (5) the
 2   availability of less drastic sanctions.”    Henderson, 779 F.2d at
 3   1423; In re Roessler-Lobert, 567 B.R. at 568; In re Tukhi,
 4   568 B.R. at 114.    Further, the dismissal “must be supported by a
 5   showing of unreasonable delay.”    Henderson, 779 F.2d at 1423.
 6        Although specific findings are beneficial to the reviewing
 7   court, the bankruptcy court “is not required to make specific
 8   findings on each of the essential factors.”    Moneymaker v. CoBen
 9   (In re Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994).    If there are
10   no explicit findings, we review the record independently.    Id.
11        A.   The bankruptcy court did not err in dismissing the
               adversary proceeding for lack of prosecution.
12
13        As a preliminary matter, we note the particular posture of
14   this appeal and the manner in which Stephens’s briefing
15   addressed it.   We have recounted its procedural path above.   In
16   short, a BAP motions panel limited the scope of appeal to the
17   order denying reconsideration; the Ninth Circuit determined that
18   this was an error; accordingly, it vacated and remanded so we
19   may consider the issue of whether the bankruptcy court properly
20   dismissed Stephens’s adversary proceeding for failure to
21   prosecute.
22        Stephens’s briefing on remand, however, is aslant of the
23   remanded issue.    He acknowledges that failure to prosecute is
24   the issue, but he then reasserts and reargues that “[t]his
25   appeal remains a request for 60(b) relief.”    Appellant’s Amended
26   Response to Remand from Ninth Circuit, and Reasons for Failure
27   to Prosecute (“Amended Opening Brief on Remand”) at 3.
28        Stephens neither discusses the five Henderson factors nor

                                       10
 1   explains why the bankruptcy court erred in dismissing the case
 2   for failure to prosecute.   He, thus, conceivably waived that
 3   issue on appeal.   See Padgett v. Wright, 587 F.3d 983, 986 n.2
 4   (9th Cir. 2009) (per curiam) (appellate courts “will not
 5   ordinarily consider matters on appeal that are not specifically
 6   and distinctly raised and argued in appellant’s opening brief”).
 7   The Ninth Circuit, however, remanded so we may consider the
 8   issue in the first instance; we will do so.   And Stephens is pro
 9   se, so we liberally construe his brief to the extent there is
10   any conceivable overlap.    See Cruz v. Stein Strauss Trust # 1361
11   (In re Cruz), 516 B.R. 594, 604 (9th Cir. BAP 2014).
12        In his briefing, Stephens pins the dismissal solely on his
13   attorney.   See Appellant’s Amended Opening Brief on Remand
14   passim; e.g., id. at 3 (“For these listed reasons, appellant
15   feels and knows that the whole failure of the case to move
16   forward in a progressive way was totally the fault of his
17   neglectful attorney . . . .”).   But Stephens never argues that
18   the bankruptcy court erred in dismissing his case for lack of
19   prosecution.   At one point, he appears to concede the operative
20   issue: “This inaction [i.e., not filing a status report] by
21   itself, is grounds for a dismissal of appellant[’]s case.     This
22   action of not preparing Status Reports was committed twice by
23   appellant[’]s attorney Smith, and the trial was continued.”     Id.
24   at 4.   Instead, he strenuously contends that he was not at fault
25   for the dismissal—his attorney was.   But that is not a reason to
26   reverse the bankruptcy court’s decision.   Nevertheless, despite
27   Stephens’s failure to discuss them, we now consider the five
28   Henderson factors.

                                      11
 1        The public’s interest in expeditious resolution of
 2   litigation.   This factor typically weighs in favor of dismissal.
 3   In re Roessler-Lobert, 567 B.R. at 568 (citing Yourish v. Cal
 4   Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)).   “But not any
 5   delay will justify dismissal; rather, the deficient conduct must
 6   result in unreasonable delay.”   Id. (citing Henderson, 779 F.2d
 7   at 1423 and In re Eisen, 31 F.3d at 1451).   We give deference to
 8   the bankruptcy court “to decide what is unreasonable because it
 9   is in the best position to determine what period of delay can be
10   endured before its docket becomes unmanageable.”   In re Eisen,
11   31 F.3d at 1451 (quotation marks omitted); see Henderson,
12   779 F.2d at 1424.
13        Here, the bankruptcy court indirectly found, and we agree,
14   that the delay in this case was unreasonable.    In the bankruptcy
15   court’s judgment: “[Smith and Stephens] were abusing Mr. Gomez
16   by their lack of diligence and by delaying the trial and
17   disposition that Gomez was seeking actively as early as
18   November 1, 2011, as stated in [Debtor’s] August 24, 2011 status
19   conference report and emphasized again in [Debtor’s] timely
20   appearance and comments at the September 1 hearing.”   Bankruptcy
21   Court’s Memorandum Decision Regarding Remand, AP Dkt. No. 44
22   (“Bkcy. Ct. Mem. Dec. on Remand”) at 8.
23        More than seven months after Stephens filed his adversary
24   proceeding, after the court’s oral instructions concerning the
25   discovery cutoff (which was never memorialized in an order
26   because Stephens did not submit one), and despite repeated
27   admonitions from the bankruptcy court, neither Smith nor
28   Stephens had done anything to advance the case other than filing

                                      12
 1   a single, unilateral status report.    Smith, and as a result
 2   Stephens, failed to produce written discovery, a settlement
 3   proposal, a mediation stipulation and proposed order, or propose
 4   a scheduling order.   By contrast, Debtor was allegedly ready for
 5   trial in November 2011.
 6        We acknowledge Stephens’s argument that he should not be
 7   held responsible for Smith’s inaction.    But, in the final event,
 8   the bankruptcy court concluded that “Stephens should be held
 9   responsible for what resulted in an inexcusably abusive
10   prosecution of his lawsuit insofar as the rights of [Debtor]
11   were concerned.”   Id. at 9.   As discussed in more depth in our
12   previous memorandum, which we adopt here, we agree.    Stephens v.
13   Gomez (In re Gomez), BAP No. CC-13-1282-TaKuPa, 2014 WL 1229612,
14   *4-*5 (9th Cir. BAP Mar. 25, 2014), vacated and remanded, 670 F.
15   App’x 549 (9th Cir. 2016).
16        True, Smith was not forthcoming with Stephens; but Stephens
17   was not unaware of the situation: he expressed frustration at
18   the September 1 hearing.    And the bankruptcy court personally
19   admonished Stephens that it was Stephens’s responsibility to
20   move the case forward.    These facts, and others, distinguish
21   Lal v. California, 610 F.3d 518 (9th Cir. 2010) and Community
22   Dental Services v. Tani, 282 F.3d 1164 (9th Cir. 2002), which
23   essentially hold that an attorney’s gross negligence may
24   insulate a client from responsibility for the attorney’s
25   actions.   But that excuse only applies when the client is
26   unaware of an attorney's inaction.    As the record makes clear,
27   Stephens knew that Smith was not properly prosecuting the case.
28        We both agree with and defer to the bankruptcy court’s

                                      13
 1   finding on this factor; it weighs in favor of dismissal.
 2        The court’s need to manage its docket.     “This factor is
 3   usually reviewed in conjunction with the public’s interest in
 4   expeditious resolution of litigation to determine if there is
 5   unreasonable delay.”   In re Eisen, 31 F.3d at 1452.   Appellate
 6   courts “generally should defer to the bankruptcy court’s
 7   assessment of what action is needed to facilitate the court’s
 8   management of its own docket.”   In re Tukhi, 568 B.R. at 115
 9   (citing In re Eisen, 31 F.3d at 1452).
10        Here, the bankruptcy judge, at the September 29, 2011
11   hearing, noted that the court’s docket was full.    Hr’g Tr.
12   (Sept. 29, 2011) 10:6-8 (“We have a very full docket, and we
13   don’t have time to just meet and exchange these kinds of views
14   every once in a while.”).    And at the February 2, 2012 hearing,
15   the bankruptcy judge orally found: “So in my standpoint, this
16   case is wasting a lot of the [Debtor’s] time.    This case is
17   wasting a lot of the Court’s time, and this is probably one of
18   the busiest courts in the country.    We don’t have a whole lot of
19   time to waste needlessly.”   Hr’g Tr. (Feb. 2, 2012) 4:2-6.     On
20   appeal, Stephens does not challenge this finding; and we defer
21   to the bankruptcy judge’s assessment of his own docket.
22   Further, the hearing occurred at the height of the recession and
23   the bankruptcy court for the Central District of California
24   could correctly be characterized, at that time, as one of the
25   busiest courts in the United States.   We thus conclude that this
26   factor weighs in favor of dismissal.
27        The risk of prejudice to the defendant.     Even without a
28   showing of actual prejudice, “[t]he law presumes injury from

                                      14
 1   unreasonable delay.”      In re Eisen, 31 F.3d at 1452 (quoting
 2   Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976)).
 3   But that presumption is rebuttable:
 4        In summary, where a plaintiff has come forth with an
          excuse for his delay that is anything but frivolous,
 5        the burden of production shifts to the defendant to
          show at least some actual prejudice. If he does so,
 6        the plaintiff must then persuade the court that such
          claims of prejudice are either illusory or relatively
 7        insignificant when compared to the force of his
          excuse. At that point, the court must exercise its
 8        discretion by weighing the relevant factors—time,
          excuse, and prejudice.
 9
10   In re Roessler-Lobert, 567 B.R. at 569 (quoting Nealey v.
11   Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1281 (9th
12   Cir. 1980)).
13        Prejudice “usually takes two forms—loss of evidence and
14   loss of memory by a witness.”      Nealey, 662 F.2d at 1281.    That
15   said, “a significant delay in resolution of litigation caused by
16   a litigant’s unreasonable conduct can cause prejudice to the
17   adverse party under certain circumstances.”      In re Tukhi,
18   568 B.R. at 115.      “This is particularly true in bankruptcy
19   cases, when the litigation involves an exception to discharge
20   claim, which clouds the debtor’s fresh start by its mere
21   existence.”    Id.7
22
23        7
             Tenorio v. Osinga (In re Osinga), 91 B.R. 893, 895 (9th
24   Cir. BAP 1988) (“We note that debtors have recourse to
     bankruptcy so that they may have the benefit of immediate relief
25   from oppressive economic circumstances and a fresh start.
     Parties seeking to except their debts from the operation of a
26   discharge should litigate their claims with reasonable
27   promptitude.”); In re Bomarito, 448 B.R. 242, 251 (Bankr. E.D.
     Cal. 2011) (“A Chapter 7 bankruptcy discharge entitles a debtor
28                                                      (continued...)

                                        15
 1        We start by concluding that Stephens rebutted the
 2   presumption of prejudice; his excuse (i.e., it was his counsel’s
 3   fault) is not frivolous.   So we consider whether Debtor suffered
 4   prejudice and weigh the relevant factors.
 5        As we explain elsewhere, we are not persuaded by Stephens’s
 6   excuse; thus, the force of Stephens’s excuse is low, at best.
 7   The record on prejudice, however, is thin; nothing suggests that
 8   a witness’s memory would fade or that evidence would have been
 9   lost.8   But we conclude that this is a case where the delay,
10   itself, was prejudicial.
11        True, in previous cases, “we have stated that the fact that
12   ‘a defendant is impacted by the mere existence of pending
13   litigation against them is not prejudice as contemplated by this
14   factor.’”   In re Roessler-Lobert, 567 B.R. at 570 (quoting
15   In re Singh, 2016 WL 770195, at *9).   The present situation is
16   readily distinguishable.
17        In In re Singh, we concluded that pending
18   nondischargeability and denial of discharge litigation was not
19   prejudicial because the debtor “was subject to a separate
20
          7
21         (...continued)
     to a ‘fresh start,’ therefore, the debtor has an interest in the
22   prompt resolution of all discharge issues.” (internal quotation
     marks and citations omitted)); Taylor v. Singh (In re Singh),
23
     BAP No. CC-15-1126-TaFC, 2016 WL 770195, at *8 (9th Cir. BAP
24   Feb. 26, 2016) (“It is true that the public has an interest in
     avoiding unreasonable delay and in the expeditious resolution of
25   complaints as to the dischargeability of debts and the denial of
     discharge.”).
26
          8
27           We review this factor as of the time the bankruptcy
     judge made his decision. But we observe that the complaint was
28   filed in late 2011; it is now late 2017.

                                     16
 1   discharge denial proceeding . . . as well as other related
 2   adversary proceedings.”    2016 WL 770195, at *9.    What’s more,
 3   the debtor had requested a stay of the adversary proceeding,
 4   leading to the result that the plaintiff’s failure to file a
 5   status report would not prejudice the debtor.      Id.
 6        In In re Roessler-Lobert, we concluded that requiring the
 7   debtor to show up at two brief hearings was not prejudicial.
 8   567 B.R. at 570.    And we observed that the debtor “did not make
 9   any serious effort to comply with the scheduling conference
10   order or applicable rules; although she is unrepresented, she is
11   not completely blameless.”    Id.    Finally, in In re Tukhi, we
12   concluded: “When, as here, the debtor Tukhi was advocating for
13   even greater delay in the resolution of the nondischargeability
14   action, it is illogical to conclude that Tukhi was at risk of
15   being prejudiced by a brief delay resulting from the
16   [plaintiff’s] isolated incident of noncompliance with pretrial
17   procedures.”    568 B.R. at 116.
18        None of the mitigating factors in the cited cases are
19   present here; thus, no such factor eliminates or reduces the
20   impact of the elongated pendency of this litigation on Debtor.
21   Debtor was prepared to promptly proceed to trial and resolve the
22   dischargeability dispute.    Debtor was not advocating for an even
23   longer delay.    And there were no other presently pending
24   dischargeability or denial of discharge proceedings.
25        What’s more, the bankruptcy court also found that Stephens
26   transformed his dispute with Debtor into a dispute with Debtor
27   and Smith; this necessarily shifted some cost and expense to
28   Debtor.   Bkcy. Ct. Mem. Dec. on Remand at 8 (“Instead of taking

                                         17
 1   corrective action as suggested by the court, Stephens allowed
 2   his dispute with Gomez to morph into one between Stephens and
 3   Smith.    But the [Debtor] Gomez was the party at expense and risk
 4   as a result of the ongoing and utterly unproductive seven-month
 5   long prosecution of Stephens’ lawsuit.”).     Consistently, Debtor
 6   mainly points to increased attorneys’ fees as prejudice; this is
 7   sufficient.
 8        Accordingly, we conclude that this factor favors dismissal
 9   or, at worst, is neutral.
10        The public policy favoring disposition of cases on their
11   merits.   Normally, this factor “weighs strongly against
12   dismissal.”   In re Roessler-Lobert, 567 B.R. at 570 (quotation
13   marks omitted).   But we need not “scrutinize the merits” when
14   reviewing a dismissal.   In re Eisen, 31 F.3d at 1454.    For
15   instance, “[e]ven if the plaintiff has an obviously strong case,
16   dismissal would be appropriate if the plaintiff has clearly
17   ignored his responsibilities to the court in prosecuting the
18   action and the defendant has suffered prejudice as a result
19   thereof.”   Id. (quoting Anderson, 542 F.2d at 526).    Even
20   despite the public policy favoring disposition on the merits,
21   “[i]t is the responsibility of the moving party to move towards
22   that disposition at a reasonable pace, and to refrain from
23   dilatory and evasive tactics.”   Id. (quoting Morris v. Morgan
24   Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991)).
25        Here, neither the bankruptcy court nor the parties
26   discussed the merits of the case.     And the bankruptcy court
27   repeatedly admonished Stephens that it was his responsibility to
28   move the case towards disposition at a reasonable pace.     Not

                                      18
 1   only did Stephens fail to move the case forward at a reasonable
 2   pace, he also does not accept that responsibility; he blames his
 3   attorney.   True, Stephens suggests that he sought to retain
 4   other counsel.   But he ultimately failed to do so, and when
 5   given the option, Stephens elected not to proceed pro se.     Given
 6   the circumstances (Smith was not going to continue representing
 7   him; he would not represent himself; and he did not have another
 8   counsel available), we agree with the bankruptcy court’s view
 9   that Stephens’s prosecution of the case was dilatory.     This
10   factor weighs toward dismissing the case or is neutral.
11        The availability of less drastic sanctions.   The bankruptcy
12   court “need not exhaust every sanction short of dismissal before
13   finally dismissing a case, but must explore possible and
14   meaningful alternatives.”   Henderson, 779 F.2d at 1424.    That
15   said, “[a]n explicit discussion of alternatives is not
16   mandatory, especially if the court actually tried alternatives
17   or warned the plaintiff before ultimately dismissing the case.”
18   In re Roessler-Lobert, 567 B.R. at 570 (citing In re Eisen,
19   31 F.3d at 1454–55).
20        This factor weighs strongly in favor of dismissal.
21   Although the bankruptcy judge did not discuss the availability
22   of less drastic sanctions, he did not need to.   At the
23   September 1 hearing, the bankruptcy judge warned Stephens that
24   it was his responsibility to prosecute the case and that if he
25   did not, the case might be dismissed.   At the September 29
26   hearing, the bankruptcy judge again admonished Stephens and his
27   counsel about the need to diligently prosecute the lawsuit and
28   warned them that the case may be dismissed.   The bankruptcy

                                     19
 1   judge dismissed the case only at a third hearing and after
 2   Stephens ignored prior warnings and only when it was clear that
 3   no cure for the unreasonable delay was at hand.     Accordingly,
 4   this factor favors dismissal.
 5        Weighing the factors.    In sum, all of the factors either
 6   favor dismissal or are neutral, at worst.     In these
 7   circumstances, we conclude that it was not an abuse of
 8   discretion for the bankruptcy court to dismiss the adversary
 9   complaint for lack of prosecution.
10        B.     We adopt our previous decision affirming the
                 bankruptcy court’s order denying reconsideration with
11               one modification.
12        As already noted, on appeal Debtor ignores the current
13   appellate context; he continues to argue as if this is a Civil
14   Rule 60(b) appeal.   It is not.   As before, we do not condone his
15   attorney’s actions or inactions, as the case may be.     But the
16   bankruptcy court determined, and we agreed and agree, that
17   Stephens was partly responsible for Smith’s inaction.     Given his
18   continuous knowledge of Smith’s consistent dereliction of duty,
19   there is no justification for deviating from the general rule
20   that the client is bound by the action or inaction of his
21   attorney.   As we previously concluded, the bankruptcy court did
22   not err in holding Stephens responsible for Smith’s action and
23   inaction and, thus, it did not abuse its discretion in denying
24   relief under Civil Rule 60(b)(6).      We also determined that the
25   bankruptcy court did not err in denying reconsideration under
26   Civil Rule 60(b)(2).
27        None of Stephens’s present arguments persuade us that our
28   previous Civil Rule 60(b) analysis was wrong.     True, the Ninth

                                       20
 1   Circuit vacated that decision, but that was so we might consider
 2   the underlying dismissal decision; it did not express any
 3   opinion about the merits of our Civil Rule 60(b) decision.    We
 4   thus adopt it.
 5        We have one small amendment.    We observed that Stephens’s
 6   reconsideration motion failed to identify the underlying legal
 7   rule under which it sought relief and that the bankruptcy court
 8   applied Civil Rule 60(b).   We concluded that this was not
 9   erroneous because we assumed that the time for appeal had
10   passed.
11        The Ninth Circuit, however, determined that the time for
12   appeal had not expired.   Thus Civil Rule 59, applied in
13   bankruptcy adversary proceedings by Bankruptcy Rule 9023,
14   analysis appears warranted.9   Having considered it, we determine
15   that Civil Rule 59 relief was not appropriate here.   First, as
16   before:
17        Careful review of Stephens’ appellate brief as well as
          the record below, however, reveals that his arguments
18        rest only on Civil Rule 60(b)(6) and, if liberally
          construed, the purported existence of “new evidence”
19        under Civil Rule 60(b)(2). Thus, we do not consider
          Civil Rule 60(b)(1) and (b)(3) in this appeal;
20        Stephens did not raise theories for reconsideration
          thereunder either below or on appeal.
21
22
          9
             Civil Rule 59(e) allows for reconsideration only if the
23   bankruptcy court: “(1) is presented with newly discovered
24   evidence that was not available at the time of the original
     hearing, (2) committed clear error or made an initial decision
25   that was manifestly unjust, or (3) there is an intervening
     change in controlling law.” Fadel v. DCB United LLC
26   (In re Fadel), 492 B.R. 1, 18 (9th Cir. BAP 2013). “There may
27   also be other, highly unusual, circumstances warranting
     reconsideration.” Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d
28   1255, 1263 (9th Cir. 1993).

                                     21
 1
     Id. at *3.   We agree.   And, he also failed to assert any basis
 2
     for relief under Civil Rule 59.    This works a waiver.   Even if
 3
     we review his arguments generously, we can neither discern an
 4
     argument supporting Civil Rule 59 relief nor manufacture a basis
 5
     for Civil Rule 59 relief on these facts.    We thus also affirm
 6
     the bankruptcy court’s decision on the motion for
 7
     reconsideration.
 8
                                  CONCLUSION
 9
          Based on the foregoing, we AFFIRM.
10
11
12
13
14
15
16
17
18
19
20
21
22
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27
28

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