362 F.3d 593 (9th Cir. 2004), 01-17406, Decker v. Advantage Fund, Ltd.

Docket Nº:01-17406, 01-17408.
Citation:362 F.3d 593
Party Name:Suzanne L. DECKER, Trustee, Plaintiff-Appellant, v. ADVANTAGE FUND LTD., fka GFL Advantage Fund Ltd.; Genesee Fund Limited; Nelson Partners; Olympus Securities, Ltd.; RGC International Investors, LDC; Capital Ventures International, Defendants-Appellees. Suzanne L. Decker, Trustee, Plaintiff-Appellant, v. Advantage Fund Ltd., fka GFL Advantage Fund
Case Date:March 29, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 593

362 F.3d 593 (9th Cir. 2004)

Suzanne L. DECKER, Trustee, Plaintiff-Appellant,

v.

ADVANTAGE FUND LTD., fka GFL Advantage Fund Ltd.; Genesee Fund Limited; Nelson Partners; Olympus Securities, Ltd.; RGC International Investors, LDC; Capital Ventures International, Defendants-Appellees.

Suzanne L. Decker, Trustee, Plaintiff-Appellant,

v.

Advantage Fund Ltd., fka GFL Advantage Fund Ltd., Defendant,

and

Nelson Partners; Olympus Securities, Ltd.; Capital Ventures International, Defendants-Appellees.

Nos. 01-17406, 01-17408.

United States Court of Appeals, Ninth Circuit

March 29, 2004

        Argued and Submitted Dec. 5, 2002.

Page 594

        Jeffrey C. Wurms, Esq., Oakland, CA, for the appellant.

        Harry S. Davis, Esq., New York, NY; Harvey L. Leiderman, and Frederick D. Holden, Esq., San Francisco, CA, for the appellees.

        Appeal from the United States District Court for the Northern District of California, Ronald M. Whyte, District Judge, Presiding. D.C. Nos. CV-01-20391-RMW, CV-01-20529-RMW, D.C. No. CV-01-20529-RMW.

        Before: BRUNETTI, TASHIMA, Circuit Judges, and EZRA, [*] District Judge.

        BRUNETTI, Circuit Judge:

        Appellant Bankruptcy Trustee Suzanne Decker ("the Trustee") appeals the district

Page 595

court's Federal Rule of Civil Procedure 12(b)(6) dismissal of her action. The Trustee asserts two claims against all Appellees: one for avoidance of fraudulent transfers made in violation of California fraudulent transfer law and one for avoidance of fraudulent transfers made in violation of the Bankruptcy Code. The Trustee's third claim, asserted only against Appellees RGC International Investors, LDC, and Advantage Fund Ltd. ("RGC-Advantage Appellees"), is for a violation of section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b). For the reasons stated in this opinion, we affirm.

         Before proceeding to the merits of this case, we must address a jurisdictional issue. The notice of appeal in this case was not timely filed in the district court. Due to a mistake by the Trustee's attorney's agent, the notice was filed in the bankruptcy court such that it would have been timely had it been filed in the correct court. Pursuant to 28 U.S.C. § 1631, we have jurisdiction because (1) the bankruptcy court cannot exercise jurisdiction over the appeal from the district court, (2) jurisdiction would have existed in this court at the time the notice was misfiled, and (3) we deem it to be in the interests of justice to exercise jurisdiction in order to avoid a forfeiture of the Trustee's rights due to a mistake by her attorney's agent. See Rodriguez-Roman v. INS, 98 F.3d 416, 424 (9th Cir. 1996) ("[W]ere we not to hear [Petitioner's] petition, he would be time-barred from seeking review.... That ... would be sufficient, in...

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