295 F. App'x 242

In the Matter of: MEGA-C POWER CORPORATION, a Nevada corporation, a/k/a Net Capital Adventures, Inc., Debtor, Unaffiliated Shareholders, Appellant, v. Mega-C Power Corporation, a Nevada corporation; United States Trustee; William M. Noall, Chapter 11 Trustee; Axion Power Corporation; Sally Fonner; Axion Power International, Inc., Appellees.

No. 06-17402.

United States Court of Appeals, Ninth Circuit.

*243Submitted Aug. 14, 2008.*

Filed Oct. 2, 2008.

Louis T. Delucia, Buchanan Ingersoll & Rooney PC, New York, NY, James D. Greene, Esq., Brownstein Hyatt Farber Schreck PC, Las Vegas, NV, for Appellant.

Stephen R. Harris, Esq., Belding Harris & Petroni, Ltd., Reno, NV, U.S. Bankruptcy Trustee, Reno, NV, Gerald M. Gordon, Esq., Gordon & Silver, Las Vegas, NV, Cecilia Rosenauer, Reno, NV, Alan R. Smith, Esq., Smith & Cope, Reno, NV, for Appellees.

Before: O’SCANNLAIN and SILVERMAN, Circuit Judges, and SINGLETON,** Senior District Judge.

MEMORANDUM ***

A group of unaffiliated shareholders (the “Shareholders”) of the Mega-C Power Corporation (“Mega-C”) appeals from an order of the Bankruptcy Appellate Panel for the Ninth Circuit (“BAP”) affirming a settlement order entered by the bankruptcy court in Mega-C’s Chapter 11 proceeding.1

We do not reach the merits of this case, however, because the Shareholders’ claims are moot. An appeal becomes equitably moot when the “ ‘[a]ppellants have failed and neglected diligently to pursue their available remedies to obtain a stay of the objectionable orders of the Bankruptcy Court,’ thus ‘permitt[ing] such a comprehensive change of circumstances to occur as to render it inequitable ... to consider the merits of the appeal.’” In re Focus Media, Inc., 378 F.3d 916, 923 (9th Cir. 2004) (alterations in original) (quoting In re Roberts Farms, Inc., 652 F.2d 793, 798 (9th Cir.1981)).

In this case, the Shareholders concede that they never obtained a stay of the settlement order. They did not meaning*244fully seek such relief either, as the Shareholders never filed the appropriate motion with the bankruptcy court. We have held that a failure to obtain a stay before appealing a bankruptcy court’s order does not necessarily render such appeal moot. See In re Sylmar Plaza, L.P., 314 F.3d 1070, 1074 (9th Cir.2002); In re S.S. Retail Stores Corp., 216 F.3d 882, 884 (9th Cir. 2000). However, as explained in Roberts Farms, “it is obligatory upon [an] appellant ... to pursue with diligence all available remedies to obtain a stay of execution of the objectionable order (even to the extent of applying to the Circuit Justice for relief ...) if the failure to do so creates a situation rendering it inequitable to reverse the orders appealed from.” 652 F.2d at 799 (emphasis added) (citing Valley Nat’l Bank of Ariz. v. Trustee, 609 F.2d 1274 (9th Cir.1979)).

Here, the failure of the Shareholders to obtain a stay allowed the settlement plan to be “substantially consummated.” See 11 U.S.C. § 1101(2). Mega-C has been dissolved; all of Mega-C’s property (including the Technology) has been transferred to either Axion or the trusts contemplated by the plan; and the Mega-C Estate has made distributions to various parties in reliance on the confirmation order. In such circumstances, we conclude that it would be “inequitable to consider the merits of the appeal.” See Roberts Farms, 652 F.2d at 798.

Accordingly, the “Appellees’ Joint Motion to Dismiss Appeals as Moot,” filed on April 9, 2007, is GRANTED.

The Shareholders’ “Joint Motion to Remand Case to Bankruptcy Court for the Purpose of Conducting Discovery or in the Alternative to Strike Matters Which Are Not in the Appellate Record,” filed on June 5, 2007, and the Appellees’ “Joint Motion to Dismiss Appeals for Violation of Circuit Court Rules, and for Damages and Costs for Frivolous Appeals,” filed on December 12, 2007, are DENIED as moot.2 The Appellees’ motion for costs, made within their filing of December 12, 2007, is GRANTED. The Appellees are awarded double costs, see Fed. R.App. P. 38, and the Shareholders’ appeal is

DISMISSED.

Unaffiliated Shareholders v. Mega-C Power Corp.
295 F. App'x 242

Case Details

Name
Unaffiliated Shareholders v. Mega-C Power Corp.
Decision Date
Oct 2, 2008
Citations

295 F. App'x 242

Jurisdiction
United States

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