Long Liu v. Smiley Wang-Ekvall, LLP ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        APR 19 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    In re: LONG DEI LIU, M.D.,                      No.    20-56102
    Debtor,                            D.C. No. 8:19-cv-00131-JLS
    ______________________________
    YUANDA HONG, Individually and as                MEMORANDUM*
    guardian ad litem for William Hong and
    Harry Hong,
    Plaintiff-Appellee,
    v.
    SMILEY WANG-EKVALL, LLP,
    Defendant-Appellant,
    and
    LONG DEI LIU, M.D., DBA Long Dei Liu,
    M.D.; et al.,
    Defendants.
    Appeal from the United States District Court
    for the Central District of California
    Josephine L. Staton, District Judge, Presiding
    Submitted April 15, 2022**
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    Pasadena, California
    Before: CALLAHAN and VANDYKE, Circuit Judges, and Y.
    GONZALEZ ROGERS,*** District Judge.
    Appellant Smiley Wang-Ekvall, LLP (“SWE”) appeals the district court’s
    order, which in turn affirmed in part, reversed in part, and remanded an order from
    the bankruptcy court awarding fees to SWE under 
    11 U.S.C. § 330
    . SWE
    represented the debtor, Dr. Long-Dei Liu (“Liu”), in Liu’s chapter 11 bankruptcy
    proceedings, which involved extensive litigation between Liu and appellees
    Yuanda Hong and his sons, William and Harry Hong, who are Liu’s judgment
    creditors and holders of the largest claim in his bankruptcy case. While neither
    party asserts that we lack jurisdiction, we must consider this question sua sponte.
    Sahagun v. Landmark Fence Co. (In re Landmark Fence Co.), 
    801 F.3d 1099
    ,
    1102 (9th Cir. 2015). Because we find that we lack jurisdiction under 
    28 U.S.C. § 158
    (d), we dismiss the appeal.
    “[R]ulings in bankruptcy cases that neither end a case nor a discrete dispute,
    but rather remand for further fact-finding on a central issue, are not final for
    purposes of § 158(d).” Gugliuzza v. FTC (In re Gugliuzza), 
    852 F.3d 884
    , 900 (9th
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Yvonne Gonzalez Rogers, United States District Judge
    for the Northern District of California, sitting by designation.
    2
    Cir. 2017). “We have departed from this general rule in situations ‘where the
    district court’s remand order is limited to purely mechanical or computational
    task[s] such that the proceedings on remand are highly unlikely to generate a new
    appeal.’” 
    Id. at 895
     (quoting In re Landmark Fence Co., 801 F.3d at 1103).
    Here, the district court’s order remanded the fee dispute to the bankruptcy
    court to make factual findings on: (1) the appropriate paralegal rate and the amount
    of fees to be awarded for tasks that SWE should have billed at this paralegal rate
    instead of attorney rates; and (2) a reasonable fee award for SWE’s work briefing
    the issue of whether Liu’s right to appeal his adverse state court judgment was
    property of his bankruptcy estate in light of the district court’s determination that
    this was “a single, straightforward legal issue.” We disagree with SWE’s
    contention that these tasks are merely computational. On the first issue, the
    bankruptcy court may need to receive competing evidence as to what the
    appropriate paralegal rate is and what the resulting fee award should be. The
    second issue may similarly require adversarial briefing and the introduction of
    additional evidence by the parties. For example, SWE disagrees with the district
    court’s suggestion that the firm spent nearly 200 hours advancing this argument
    and presumably intends to introduce additional evidence suggesting that it billed a
    more reasonable amount of time on this issue on remand. Regardless of how the
    bankruptcy court rules, we cannot say with confidence that neither party is likely to
    3
    appeal the bankruptcy court’s resolution of these pending issues.
    Further, SWE has not shown that the four-factor test that we use to
    determine whether an order remanding for fact-finding on a central issue is
    appealable weighs in its favor. Those factors are: “(1) the need to avoid piecemeal
    litigation; (2) judicial efficiency; (3) the systemic interest in preserving the
    bankruptcy court’s role as the finder of fact; and (4) whether delaying review
    would cause either party irreparable harm.” In re Gugliuzza, 852 F.3d at 894
    (quoting Eden Place, LLC v. Perl (In re Perl), 
    811 F.3d 1120
    , 1126 (9th Cir.
    2016)).
    Given that the bankruptcy court’s task is substantive and not mechanical or
    computational, the first three factors strongly favor having the bankruptcy court
    address the remaining questions in the first instance and allowing the Ninth Circuit
    to address all of the merits of the case in a single subsequent appeal should the
    need arise. See In re Landmark Fence Co., 801 F.3d at 1103. SWE’s argument on
    irreparable harm is also unpersuasive because the firm does not explain why it
    would be precluded from raising any of its arguments in a subsequent appeal to
    this court. See Grand Canyon Tr. v. Tucson Elec. Power Co., 
    391 F.3d 979
    , 986
    (9th Cir. 2004) (“It is well settled . . . that an appeal from the final judgment draws
    in question all earlier non-final orders and all rulings which produced the
    judgment.” (internal quotations and citations omitted)). Finally, even assuming
    4
    SWE is correct that a ruling from this court might materially aid the bankruptcy
    court or dispose of the entire case (if we were to affirm the bankruptcy court’s
    ruling in its entirety), these considerations are insufficient to establish this court’s
    jurisdiction under § 158(d). See In re Gugliuzza, 852 F.3d at 898.
    The appeal is DISMISSED. Each party shall bear its own costs.
    5
    

Document Info

Docket Number: 20-56102

Filed Date: 4/19/2022

Precedential Status: Non-Precedential

Modified Date: 4/19/2022