In re: FRANK JAKUBAITIS v. Carlos Padilla Iii;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: FRANK JAKUBAITIS,
Debtor,
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FRANK JAKUBAITIS,
Appellant,
v.
CARLOS PADILLA III; et al.,
Appellees.
No. 19-60041
BAP No. 18-1067
MEMORANDUM*
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Spraker, Faris, and Lafferty III, Bankruptcy Judges, Presiding
In re: FRANK JOSEPH JAKUBAITIS,
Debtor,
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FRANK JOSEPH JAKUBAITIS,
Appellant,
No. 21-60030
BAP No. 20-1009
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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v.
JEFFREY IAN GOLDEN; et al.,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Gan, Faris, and Spraker, Bankruptcy Judges, Presiding
Submitted December 2, 2022**
Before: BADE, LEE, and KOH, Circuit Judges
Frank Jakubaitis, proceeding pro se, appeals from the Bankruptcy Appellate
Panel’s (“BAP”) order affirming the bankruptcy court’s default judgment on
Carlos Padilla III and Jeffrey Ian Golden’s (collectively, “Appellees”) claim
seeking revocation of discharge under 11 U.S.C. § 727(d). The bankruptcy court
struck Jakubaitis’s answer and entered default judgment after Jakubaitis failed to
respond to an order to show cause, to comply with discovery orders, and to pay
monetary sanctions. We have jurisdiction under 28 U.S.C. § 158(d)(1). We
review de novo decisions of the BAP, applying 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 for an abuse of
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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discretion the bankruptcy court’s entry of terminating sanctions under Federal Rule
of Civil Procedure 37. Visioneering Constr. & Dev. Co. v. U.S. Fid. & Guar. (In
re Visioneering Constr.), 661 F.2d 119, 123 (9th Cir. 1981). We affirm.
1. The bankruptcy court did not abuse its discretion in sanctioning Jakubaitis
by striking his answer because the record supports the finding that his conduct was
due to willfulness, bad faith, or fault. See Fed. R. Civ. P. 37(b)(2)(A)(iii) (a court
may strike pleadings as a sanction for violating discovery orders); Jorgensen v.
Cassiday, 320 F.3d 906, 912 (9th Cir. 2003) (“Where [a] sanction results in
default, the sanctioned party’s violations must be due to the ‘willfulness, bad faith,
or fault’ of the party.” (citation omitted)). Jakubaitis contends that his failure to
follow the show-cause order was due to his impecunity and his attorney’s failure to
recognize the implications of the show-cause order, but these arguments were
already considered and correctly rejected by the BAP.
2. Similarly, the bankruptcy court did not abuse its discretion in entering
default judgment because the record supports the finding that Jakubaitis’s culpable
conduct led to the default. See Alan Neuman Prods., Inc. v. Albright, 862 F.2d
1388, 1392 (9th Cir. 1988) (“[A] default judgment will not be disturbed if . . . the
defendant’s culpable conduct led to the default. . . .”). Jakubaitis’s contention that
the bankruptcy court was required to separately enter default under Federal Rule of
Civil Procedure 55(a) lacks merit because the bankruptcy court ordered default

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under Federal Rule of Civil Procedure 37. See C. Wright & A. Miller, 10A Fed.
Prac. & Proc. Civ. § 2682 (4th ed.) (“Rule 55(a) does not represent the only source
of authority in the rules for the entry of a default that may lead to judgment[;] . . .
[f]or example, Rule 37(b)(2)(A)(vi) . . . provide[s] for the use of a default
judgment as a sanction for a violation of the discovery rules.”). Jakubaitis’s
contention that his answer was “not stricken as a discovery sanction,” is belied by
the record and his own briefing.
3. Next, the bankruptcy court did not abuse its discretion in denying
Jakubaitis’s motion to vacate the default judgment under Federal Rule of Civil
Procedure 60(b), for two reasons. See Briney v. Burley (In re Burley), 738 F.2d
981, 988 (9th Cir. 1984). First, Jakubaitis’s contention that his failure to respond
to the show-cause order was due to his attorney’s mistake or excusable neglect is
unsupported by the record, and he did not raise the contention until filing an
amendment to the Rule 60(b) motion. See Casey v. Albertson’s Inc., 362 F.3d
1254, 1260 (9th Cir. 2004) (“[A]lleged attorney malpractice does not usually
provide a basis to set aside a judgment pursuant to Rule 60(b)(1),” especially
“where a party has waited . . . to complain about the failings of her lawyers.”).
Second, Jakubaitis’s allegation that Appellees altered a financial document is
inconsequential to this issue because the allegedly altered document was not
relevant to the default judgment.

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4. Finally, the BAP properly affirmed in part and reversed in part the
bankruptcy court’s order denying Jakubaitis’s motion for a protective order. See
Reza v. Pearce, 806 F.3d 497, 508 (9th Cir. 2015). The BAP properly reversed the
bankruptcy court’s denial of the protective order to the extent that the order
required Jakubaitis to divulge communications with his psychotherapist. See
Jaffee v. Redmond, 518 U.S. 1, 15 (1996) (recognizing the psychotherapist-patient
privilege, which protects “confidential communications between a licensed
psychotherapist and her patients in the course of diagnosis or treatment”).
However, to the extent that the order required Jakubaitis to answer questions
regarding the medication he was taking and whether its side effects interfered with
his ability to give accurate deposition testimony, the BAP properly found no abuse
of discretion in the bankruptcy court’s denial of the protective order because those
questions did not concern communications with Jakubaitis’s psychotherapist.
Appellees’ contention that this court is without jurisdiction over Jakubaitis’s
appeal of the interlocutory protective order lacks merit because the BAP entered a
final order disposing of the claims, which granted this court the power to
adjudicate the protective-order appeal. See Wolkowitz v. FDIC (In re Imperial
Credit Indus., Inc.), 527 F.3d 959, 971 n.12 (9th Cir. 2008) (“We have jurisdiction
to hear this claim even though [the orders at issue] were not appealable in their
own right when the briefs were filed.”).

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5. In addition to the relief requested in the briefing, there are a number of
pending motions, which we resolve as follows.
Appellees’ requests for judicial notice, filed on November 12, 2020 (Dkt.
No. 35), and February 2, 2022 (Dkt. No. 71), are DENIED.
Jakubaitis’s motion to strike portions of the answering brief and
supplemental excerpts of record, filed on March 15, 2021 (Dkt. No. 49), is
DENIED.
Appellees’ request to waive the requirement to send paper copies of the
excerpts of record, filed on March 3, 2022 (Dkt. No. 80), is GRANTED.
Jakubaitis’s requests for judicial notice, filed on May 11, 2022 (Dkt. No.
91), and May 13, 2022 (Dkt. No. 94), are DENIED.
Jakubaitis’s motions to file a substitute late, oversized reply brief, filed on
May 13, 2022 (Dkt. No. 92), and May 27, 2022 (Dkt. Nos. 97, 98), are
GRANTED. The clerk shall file the substitute reply brief submitted on May 27,
2022 (Dkt. No. 99).
AFFIRMED.

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