Larry Lichtenegger v. Bank of Montreal , 693 F. App'x 655 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: SK FOODS, L.P., a California limited No. 15-16806
partnership, et al.,
D.C. No. 2:14-cv-00402-TLN
Debtor,
______________________________
MEMORANDUM*
LARRY JOE LICHTENEGGER,
Plaintiff-Appellant,
and
GERARD ANTHONY ROSE,
Plaintiff,
v.
BANK OF MONTREAL, as Administrative
Agent, successor by Assignment to Debtors
SK Foods, L.P. and RHM Industrial
Specialty Foods, Inc., a California
corporation, dba Colusa County Canning
Co.,
Defendant-Appellee,
and
BRADLEY D. SHARP; CSSS, LP,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendants.
In re: SK FOODS, L.P., a California limited No. 15-16807
partnership, et al.,
D.C. No. 2:14-cv-00402-TLN
Debtor,
______________________________
GERARD ANTHONY ROSE,
Plaintiff-Appellant,
and
LARRY JOE LICHTENEGGER,
Plaintiff,
v.
BANK OF MONTREAL, as Administrative
Agent, successor by Assignment to Debtors
SK Foods, L.P. and RHM Industrial
Specialty Foods, Inc., a California
corporation, dba Colusa County Canning
Co.,
Defendant-Appellee,
and
BRADLEY D. SHARP; CSSS, LP,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
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Troy L. Nunley, District Judge, Presiding
Argued and Submitted April 21, 2017
San Francisco, California
Before: TROTT and IKUTA, Circuit Judges, and FABER,** District Judge.
Larry Lichtenegger and Gerard Rose appeal the district court’s order
affirming the bankruptcy court’s award of sanctions against them. We have
jurisdiction pursuant to 28 U.S.C. §§ 158(d)(1) and 1291, see Gugliuzza v. FTC
(In re Gugliuzza), 852 F.3d 884, 889-91 (9th Cir. 2017), and we reverse and
remand.
1. “The standard for finding a party in civil contempt is well settled: The
moving party has the burden of showing by clear and convincing evidence that the
contemnors violated a specific and definite order of the court. The burden then
shifts to the contemnors to demonstrate why they were unable to comply.” FTC v.
Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999) (internal citation and
quotation omitted).
2. The bankruptcy court erred in granting Bank of Montreal’s motion for
summary judgment against Lichtenegger and Rose. Summary judgment may be
granted only where there is no dispute of material fact and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56. “[C]ourts may not resolve
**
The Honorable David A. Faber, United States District Judge for the
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genuine disputes of fact in favor of the party seeking summary judgment.” Zetwick
v. County of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (quoting Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014) (per curiam)). In this case, the declarations submitted by
Lichtenegger and Rose, while often conclusory and self-serving and even at times
inconsistent with their earlier testimony, created disputed issues of material fact.
For example, genuine disputes of material fact exist as to when Lichtenegger and
Rose each found out that the TRO had been entered; if they knew that the Drum
Line had not yet left the country when the TRO was entered; whether Lichtenegger
was a lawyer for CVS at the relevant time; whether Lichtenegger and Rose failed
to take reasonable steps to prevent the transfer of the Drum Line; and whether
Lichtenegger and Rose failed to take reasonable steps to produce witnesses with
knowledge of the Drum Line’s status. The bankruptcy court recognized as much
when it made its determination that Lichtenegger and Rose were not credible.
This, however, the court was not permitted to do because it is “clear that the court
must not make any credibility determinations” when considering a summary
judgment motion. Id.; see also Schlup v. Delo, 513 U.S. 298, 332 (1995) (“[A]
district court generally cannot grant summary judgment based on its assessment of
the credibility of the evidence presented.”) (quoting Agosto v. INS, 436 U.S. 748,
756 (1978)).
Southern District of West Virginia, sitting by designation.
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Nor could the bankruptcy court make factual findings in granting summary
judgment. “By definition, summary judgment may be granted only when there are
no disputed issues of material fact, and thus no factfinding by the district court.
Thus, where the district court has made a factual determination, summary
judgment cannot be appropriate.” Animal Legal Def. Fund v. U.S. Food & Drug
Admin., 836 F.3d 987, 989-90 (9th Cir. 2016) (en banc) (per curiam) (internal
citations and quotation omitted).
3. A question of fact can normally only be resolved after an evidentiary
hearing.” ZiLOG, Inc. v. Corning (In re ZiLOG, Inc.), 450 F.3d 996, 1007 (9th
Cir. 2006). To the extent the declarations raise genuine disputes of material fact,
the bankruptcy court should take appropriate evidence and make appropriate
formal factual findings. Kismet Acquisition LLC v. Diaz-Barba (In re Icenhower),
755 F.3d 1130, 1138-39 (9th Cir. 2014).
REVERSED AND REMANDED.
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