OpenJurist

107 F3d 877 Lowenschuss Resorts International Inc v. Lowenschuss

107 F.3d 877

In re Fred LOWENSCHUSS, Debtor.
RESORTS INTERNATIONAL, INC.; Mitchell A. Karlan, Esq.;
Gibson, Dunn & Crutcher, Appellees,
v.
Fred LOWENSCHUSS, Debtor-Appellant.

No. 95-17061.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 14, 1997.*
Decided March 6, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: BRUNETTI, FERNANDEZ, and HAWKINS, Circuit Judges.

1

MEMORANDUM**

2

Chapter 11 bankruptcy debtor Fred Lowenschuss appeals an order of the United States District Court for the District of Nevada that clarifies an injunction issued by the United States Bankruptcy Court for the District of Nevada. The bankruptcy court issued a final injunction that barred Resorts International, Inc. from prosecuting its action against Lowenschuss in the United States Bankruptcy Court for the District of New Jersey. The district court clarified that order by ruling that in the event Resorts obtained a favorable result in an appeal then pending before us, it could proceed with the New Jersey action against the pension plan. We affirm.

3

At a hearing in the district court, Lowenschuss conceded that the final injunction should not bar Resorts' action against the pension plan if Resorts obtained a favorable determination in this court. Lowenschuss did not object to the district court's decision to that effect. That favorable determination was obtained by Resorts.1 Lowenschuss cannot now successfully appeal the district court's decision. See Pye v. Mitchell, 574 F.2d 476, 480 (9th Cir.1978); Drop Dead Co., Inc. v. S.C. Johnson & Son, Inc., 326 F.2d 87, 91 (9th Cir.1963). We therefore affirm the district court.2

4

Although Lowenschuss' arguments on appeal are ultimately without merit, in the context of this litigation we exercise our discretion to deny Resorts' motion for double costs and attorneys fees. See Fed.R.App.P. 38; see also Connick v. Teachers Ins. & Annuity Ass'n of Am., 784 F.2d 1018, 1022 (9th Cir.1986); French v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 784 F.2d 902, 909 (9th Cir.1986).

5

The order of the district court is AFFIRMED. The motion for double costs and attorneys fees is DENIED.

*

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

On October 10, 1995, we decided all of the issues then on appeal in favor of Resorts. See Resorts Int'l, Inc. v. Lowenschuss (In re Lowenschuss), 67 F.3d 1394, 1401, 1402 (9th Cir.1995) (Lowenschuss I ), cert. denied, --- U.S. ----, 116 S.Ct. 2497, 135 L.Ed.2d 189 (1996)

2

At any rate, were we to rule on the merits, we would affirm the district court