John Wolfe v. Frank D'Errico

FILED
NOT FOR PUBLICATION
OCT 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: TRANSACT, INC., No. 14-56453

Debtor, D.C. No. 8:13-cv-01312-MWF

------------------------------
MEMORANDUM*
JOHN M. WOLFE, Chapter 7 Trustee of
Transact, Inc.,

Appellant,

v.

FRANK D’ERRICO, individually and on
behalf of the Frank D’Errico Living Trust;
RHFD PEBBLE, INC.,

Appellees.

Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted October 4, 2016
Pasadena, California

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: D.W. NELSON and PAEZ, Circuit Judges, and BUCKLO,** District
Judge.

John M. Wolfe, Chapter 7 Trustee for the bankruptcy estate of Transact, Inc.

(“Transact”), appeals the district court’s judgment, which affirmed in part, reversed

in part, and remanded the case for further proceedings. In light of the district

court’s ruling, we dismiss the appeal for lack of jurisdiction.

We address the issue of jurisdiction sua sponte. See In re Landmark Fence

Co., 801 F.3d 1099, 1102 (9th Cir. 2015). To determine whether we have

jurisdiction over an appeal from a decision “involving a remand to the bankruptcy

court[,]” we consider the following four factors: “(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 Perl, 811 F.3d 1120, 1126 (9th

Cir. 2016) (citing In re Landmark Fence Co., 801 F.3d at 1101-02). In this case,

all four factors weigh against exercising jurisdiction.

First, the risk of piecemeal litigation is significant because the district court

remanded for non-computational tasks. See In re Landmark Fence Co., 801 F.3d

at 1103 (finding a “significant” risk of piecemeal litigation where “[f]ar from

**
The Honorable Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
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remanding for a mechanical or computational task, the district court directed the

bankruptcy court to engage in further fact-finding before reassessing its damages

award”) (internal quotation marks omitted).

Second, exercising jurisdiction over the appeal would not enhance judicial

efficiency. Transact raises only two issues on appeal; however, the district court

remanded a number of other issues. Resolution of the appeal would therefore

neither obviate the need for a remand, nor render a subsequent appeal unlikely.

See In re Lakeshore Vill. Resort, Ltd., 81 F.3d 103, 106 (9th Cir. 1996) (“[W]hen

an intermediate appellate court remands a case to the bankruptcy court, the

appellate process likely will be much shorter if we decline jurisdiction and await

ultimate review on all the combined issues.”) (internal quotation marks omitted).

Third, the district court remanded this case with directions to the bankruptcy

court to make additional factual findings. See In re Landmark Fence Co., 801 F.3d

at 1103 (“Although the parties characterize the issues in the appeal as purely

matters of law, viewing the appeal through this lens ignores the language of the

order on appeal.”). Dismissing the appeal will permit the bankruptcy court to

decide, in the first instance, factual issues pertaining both to liability and damages.

Fourth, neither party will suffer irreparable harm if we decline jurisdiction

over the appeal. While Frank D’Errico expressed his desire for a resolution of the

3
issues on appeal, “this consideration does not override the finality consideration.”

Id.

“With all four . . . considerations pointing to a denial of jurisdiction for this

appeal, our course is clear.” In re Bender, 586 F.3d 1159, 1166 (9th Cir. 2009).

DISMISSED.

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