21 F.3d 1111 (9th Cir. 1994), 93-15658, Matter of Bio-Response, Inc.

Docket Nº:93-15658.
Citation:21 F.3d 1111
Party Name:In re BIO-RESPONSE, INC., Debtor. Samuel ROSE, Dr., Appellant, v. BIO-RESPONSE, INC., Appellee.
Case Date:March 23, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1111

21 F.3d 1111 (9th Cir. 1994)

In re BIO-RESPONSE, INC., Debtor.

Samuel ROSE, Dr., Appellant,



No. 93-15658.

United States Court of Appeals, Ninth Circuit

March 23, 1994

         Editorial Note:

         This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

        Argued and Submitted Feb. 7, 1994.

        Appeal from the United States District Court for the Northern District of California, No. CV-92-03036-DLJ; D. Lowell Jensen, District Judge, Presiding.

        N.D.Cal., 1993 WL 87213.


        Before: ALARCÓN and FERNANDEZ, Circuit Judges, and WILSON, District Judge. [*]

        MEMORANDUM [**]

        Dr. Samuel Rose appeals from the district court's affirmance of the bankruptcy court's judgment in favor of Bio-Response, Inc. in his malicious prosecution claim against Bio-Response. We affirm the judgment because we conclude that Dr. Rose has failed to demonstrate that Bio-Response's dismissal of its state court trade secret misappropriation action was a favorable termination on the merits.


        On January 2, 1987, Bio-Response sued Dr. Rose in the Superior Court for the County of Alameda, alleging misappropriation of trade secrets, breach of fiduciary duty, breach of contract, interference with business relationships, fraud, and civil conspiracy. Bio-Response filed a voluntary petition in bankruptcy pursuant to Chapter 11 on September 14, 1989. According to the joint pre-trial order filed in the bankruptcy court, Dr. Rose filed a proof of claim for malicious prosecution against Bio-Response on January 25, 1990. 1

        On August 20, 1990, the Superior Court for the County of Alameda granted Bio-Response's motion for dismissal without prejudice in its action against Dr. Rose. The following September, the bankruptcy court conducted a bench trial of Dr. Rose's malicious prosecution claim. The bankruptcy court entered judgment in favor of Bio-Response. Dr. Rose appealed from the bankruptcy court's judgment to the district court. The district court affirmed.


        Dr. Rose seeks reversal on the grounds that the bankruptcy court erred in concluding that (1) Bio-Response had probable cause to maintain its trade secret misappropriation suit; (2) the trade secret action was terminated in favor of Bio-Response; (3) Bio-Response did not act with malice when it filed its trade secret action; and (4) Dr. Rose did not demonstrate...

To continue reading