Long Liu v. Smiley Wang-Ekvall, LLP

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2022
• Docket: 20-56102
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.