Larry Lichtenegger v. Bank of Montreal
693 F. App'x 655
| 9th Cir. | 2017Background
- Bank of Montreal sought and obtained sanctions in bankruptcy court against Larry Lichtenegger and Gerard Rose for violating a temporary restraining order (TRO) concerning the transfer of an asset called the "Drum Line."
- The bankruptcy court granted Bank of Montreal’s motion for summary judgment and imposed sanctions, finding Lichtenegger and Rose not credible and that they had violated the TRO.
- Lichtenegger and Rose filed declarations disputing key facts (e.g., when they learned of the TRO, whether the Drum Line had left the country, Lichtenegger’s status as counsel for CVS, and steps taken to prevent transfer or produce witnesses).
- The district court affirmed the bankruptcy court’s ruling; Lichtenegger and Rose appealed to the Ninth Circuit.
- The Ninth Circuit reviewed whether summary judgment was appropriate given disputed material facts and whether the bankruptcy court improperly made credibility and factual determinations at the summary judgment stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on sanctions | BofM: No genuine dispute; facts show TRO violation and support sanctions | Lichtenegger/Rose: Declarations create genuine disputes of material fact | Reversed — summary judgment improper because material factual disputes existed |
| Whether court may resolve credibility on summary judgment | BofM: Credibility findings support judgment | Defendants: Credibility determinations inappropriate at summary judgment | Reversed — courts must not make credibility determinations on summary judgment |
| Whether court may make factual findings when granting summary judgment | BofM: Court’s factual findings justified judgment | Defendants: Making factual findings defeats summary judgment’s purpose | Reversed — factual findings indicate summary judgment was inappropriate |
| Appropriate procedure when declarations raise factual disputes | BofM: Summary disposition warranted | Defendants: Evidentiary hearing and formal factfinding required | Remanded — take evidence and make formal factual findings (possible evidentiary hearing) |
Key Cases Cited
- FTC v. Affordable Media, 179 F.3d 1228 (9th Cir.) (standard for civil contempt: moving party must prove violation by clear and convincing evidence; burden then shifts)
- Zetwick v. County of Yolo, 850 F.3d 436 (9th Cir.) (courts may not resolve genuine factual disputes in favor of movant on summary judgment)
- Tolan v. Cotton, 134 S. Ct. 1861 (U.S.) (district court must view evidence in light most favorable to nonmoving party; avoid credibility determinations)
- Schlup v. Delo, 513 U.S. 298 (U.S.) (generally courts cannot grant summary judgment based on credibility assessments)
- Agosto v. INS, 436 U.S. 748 (U.S.) (similar limitation on credibility assessments at summary judgment)
- Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir.) (summary judgment cannot be appropriate when court makes factual determinations)
- ZiLOG, Inc. v. Corning (In re ZiLOG, Inc.), 450 F.3d 996 (9th Cir.) (questions of fact normally resolved after evidentiary hearing)
- Kismet Acquisition LLC v. Diaz-Barba (In re Icenhower), 755 F.3d 1130 (9th Cir.) (when declarations raise genuine disputes, court should take evidence and make formal findings)
- Gugliuzza v. FTC (In re Gugliuzza), 852 F.3d 884 (9th Cir.) (jurisdictional citation supporting appellate review)
REVERSED AND REMANDED.