                             NOT FOR PUBLICATION                         FILED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

                                       2
                      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

                                          3
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.

                                           4
      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.




                                           5
