Filed: Sep. 11, 2018
Latest Update: Sep. 11, 2018
Summary: ORDER RE: BANKRUPTCY APPEAL Bankruptcy Case No. 09-29162-D-11 Adversary Proceeding No. 09-02543-D WILLIAM B. SHUBB , District Judge . Appellant Larry J. Lichtenegger, an attorney, brought this appeal of a judgment issued by the United States Bankruptcy Court for the Eastern District of California finding appellant in contempt for violation of a temporary restraining order. (Appellant's Opening Brief, Docket No. 8.) The court reviews the decision to impose contempt for an abuse of discret
Summary: ORDER RE: BANKRUPTCY APPEAL Bankruptcy Case No. 09-29162-D-11 Adversary Proceeding No. 09-02543-D WILLIAM B. SHUBB , District Judge . Appellant Larry J. Lichtenegger, an attorney, brought this appeal of a judgment issued by the United States Bankruptcy Court for the Eastern District of California finding appellant in contempt for violation of a temporary restraining order. (Appellant's Opening Brief, Docket No. 8.) The court reviews the decision to impose contempt for an abuse of discreti..
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ORDER RE: BANKRUPTCY APPEAL
Bankruptcy Case No. 09-29162-D-11
Adversary Proceeding No. 09-02543-D
WILLIAM B. SHUBB, District Judge.
Appellant Larry J. Lichtenegger, an attorney, brought this appeal of a judgment issued by the United States Bankruptcy Court for the Eastern District of California finding appellant in contempt for violation of a temporary restraining order. (Appellant's Opening Brief, Docket No. 8.)
The court reviews the decision to impose contempt for an abuse of discretion. FTC v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999). An evaluation of abuse of discretion follows a two-prong test. First, the court determines de novo whether the bankruptcy court identified the correct legal rule for application. United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc). If the Bankruptcy Court did identify the correct rule, the court reviews whether the application of the legal rule was clearly erroneous, and will affirm unless its findings were illogical, implausible, or without support in the record. Id. at 1262.
For the reasons set forth in the Bankruptcy Judge's written memorandum decision filed February 6, 2018 (In re SK Foods, L.P., No. 09-29162-D-11, 2018 WL 784451 (Bankr. E.D. Cal. Feb. 6, 2018)), appellant was properly found in contempt for violation of a temporary restraining order. First, the Bankruptcy Court correctly identified the pertinent legal standard: "[t]he 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." Id. at *1 (quoting Affordable Media, 179 F.3d at 1239)(internal quotation marks omitted).
Second, the Bankruptcy Court's factual findings were not illogical or implausible and had support in the record. See Hinkson, 585 F.3d at 1261. Further, the Bankruptcy Court's application of those findings of facts to the correct legal standard was not clearly erroneous.
IT IS THEREFORE ORDERED that the order of the Bankruptcy Court finding appellant Larry J. Lichtenegger in contempt be, and the same hereby is, AFFIRMED.
