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Parker v. Bain

filed: September 28, 1995.

G. STEVEN PARKER, PLAINTIFF-APPELLANT,
v.
DAVID L. BAIN, ESQ.; PACIFIC SHIP REPAIR & FABRICATION PROFIT SHARING PLAN, INC.; BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of California. D.C. No. CV-91-00378-IG. Irma E. Gonzalez, District Judge, Presiding.

Before: Cynthia Holcomb Hall and Edward Leavy, Circuit Judges, and David F. Levi,*fn* District Judge. Opinion by Judge Hall.

Author: Hall

HALL, Circuit Judge:

Steven Parker was co-owner of a ship repair company. In order to prevent the company from financial ruin, he stole funds from his company's pension plan (the Plan) and transferred the funds into his company's general account. He was prosecuted and pleaded guilty to several federal charges.

A complex round of civil litigation then ensued. This appeal involves Parker, the Plan, and Bank of America, which is the trustee of the Plan. The district court granted summary judgment in favor of the Plan on its claim that Parker had breached his fiduciary duty to the Plan, and dismissed for lack of standing Parker's claim that Bank of America breached its fiduciary duty to the Plan. Parker filed a voluntary Chapter 11 petition in bankruptcy and then appealed both decisions.

The district court had jurisdiction under 28 U.S.C. § 1331. The parties dispute whether this Court has jurisdiction over the appeal from the grant of summary judgment because Parker's notice of appeal may have been untimely. This Court has jurisdiction over the dismissal of Parker's claim against Bank of America under 28 U.S.C. § 1291. For the reasons that follow, we conclude that Parker's appeal from the grant of summary judgment against him is stayed by the automatic stay, but that his appeal from the dismissal of his claim against Bank of America is not. We affirm the dismissal of his claim against Bank of America.

I.

Steven Parker was Vice President and eighty-percent owner of Pacific Ship Repair and Fabrication, Inc. (Pac Ship), a San Diego company with approximately 400 employees. David Bain was President, CEO, and Chairman of the Board. Bain owned the remaining twenty percent.

Pac Ship experienced financial difficulties, prompting its creditors to file an involuntary petition in bankruptcy. In order to avoid bankruptcy,*fn1 Parker and Bain conspired to and did embezzle approximately $1.4 million from Pacific Ship Repair and Fabrication Profit Sharing Savings Plan, their company's ERISA governed pension plan.

The U.S. Attorney learned of these misdeeds and prosecuted. As the result of a plea bargain, Parker waived indictment and pleaded guilty to a four-count superseding information, which included two counts of conspiracy, one count of knowingly filing a false income tax return, and one count of knowingly assisting in the filing of a false IRS form 5500. In pleading guilty, Parker admitted that he directed employees of Pac Ship to "cash in" assets of the Plan, which he then transferred to Pac Ship's general account. Parker used this money to reduce his personal debt to Pac Ship and to pay Pac Ship's creditors. He then attempted to cover up the embezzlement by filing false personal tax returns and false corporate IRS forms.

Civil litigation followed close on the heels of the criminal prosecution. Parties joined in the litigation included Parker, Bain, Pac Ship, Arcwell Corporation (predecessor corporation to Pac Ship), the Plan, Bank of America (the named trustee of the Plan), two employees of Pac Ship, and one employee of Bank of America.

Some of the claims have been dismissed or settled, and some have been actively litigated during the pendency of this appeal. Following is a schematic description of the particular parties and claims giving rise to this appeal:

1) Parker /--> Plan 3d amended complaint

(declaratory relief, re:

whether Parker was fully

vested in the Plan)

2) Parker Plan 1st amended counterclaim

(declaratory relief re: whether

the Plan should seek reimbursement

from Pac Ship on

an alleged note ...


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