NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re : DATABASEUSA.COM LLC,

Debtor,

______________________________

INFOGROUP, INC.,

Appellant,

v.

DATABASEUSA.COM LLC; EVEREST GROUP LLC,

Appellees. No. 22

- 15734

D.C. No. 2:20

- cv

- 01925

- JCM

MEMORANDUM *

In re : DATABASEUSA.COM LLC,

Debtor,

______________________________

DATABASEUSA.COM LLC,

Appellant,

v.

INFOGROUP, INC., No. 22

- 15856

D.C. No. 2:20

- cv

- 01925

- JCM

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

MAY 18 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 Appellee,

and

EVEREST GROUP LLC,

Defendant.

Appeal from the United States District Court

for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted April 21, 2023 San Francisco, California

Before: VANDYKE and SANCHEZ, Circuit Judges, and S. MURPHY , III

, * * District Judge.

DatabaseUSA.com filed for Chapter 11 bankruptcy. Infogroup, a creditor,

moved in the bankruptcy court for authority to pursue avoidance claims on behalf

of DatabaseUSA.com (“Authority Motion”) . The bankruptcy court denied the

motion, and Infogroup appealed. D espite the bankruptcy court’s order, Infogroup

filed an adversary complaint to preserve it s claims before the limitations period

expired. DatabaseUSA.com then moved for sanctions against Infogroup for

violating the bankruptcy court’s order. The bankruptcy court granted the sanctions

motion and ordered Infogroup to dismiss its adversary compla int and to pay

** The Honorable Stephen Joseph Murphy

, III, United States District Judge for the Eastern District of Michigan, sitting by designation.3

attorney’s fees to DatabaseUSA.com. Infogroup appealed the sanctions. T he

district court remanded the bankruptcy court’s order denying Infogroup’s

A uthority M otion for further factfinding on a demand futility issue and dismissed

the appeal from the award of sanctions for lack of jurisdiction. Infogroup and

DatabaseUSA.com now cross

- appeal th ose rulings . For the reasons below, we

hold that the court lacks jurisdiction to review the district court’s order

.

Under 28 U.S.C. § 158(d) (1), “ courts of appeals shall have jurisdiction of

appeals from all final decisions, judgments, orders, and decrees entered ” by district

courts, which hear appeals from the bankruptcy courts. And w hen a district court

“ remands for factual determinations on a ce ntral issue, its order is not final and we

lack jurisdiction to review the order .” In re Vylene Enters., Inc. , 968 F.2d 887, 895

(9th Cir. 1992) (citations omitted). “ [ W ] hen an appeal is taken from a district

court

. . . ruling that remands the case for further proceedings in the bankruptcy

court ,” we appl y “ a four

- factor test ” to decide whether we should nonetheless

exercise jurisdiction over the matter , considering : “ (1) the need to avoid piecemeal

litigation; (2) judicial efficiency; (3) the systemic i nterest 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 884, 894

(9th Cir. 2017) (citation omitted)

.

All four factors weigh against exercising jurisdiction over the district court’s4

nonfinal order. As to the first two factors, review of the district court’s remand of

the Authority Motion would result in piecemeal litigation and judicial inefficiency.

T he district court reman ded the Authority Motion to the bankruptcy court for

further factfinding on the issue of demand futility . But neither the bankruptcy

court nor the district court made factual findings on certain elements relevant to

that issue

. E ven if we were to review the demand futility issue

, we would still

have to remand for the bankruptcy court to decide the other elements in the first

instance.

As to the third factor

, the bankruptcy court is better situated to decide demand

futility and the remaining elements in th e first instance

. Indeed , the bankruptcy court

held a four

- day evidentiary hearing on the Authority Motion. P artial transcripts are

in the record, but the bankruptcy court that presided over the hearing is better situated

to determine the issue. See Towers v. Iger , 912 F.3d 523 , 528 (9th Cir. 2018)

(“ [ D ] emand futility must be decided by the trial court on a case

- by

- case basis and

not by any rote and inelastic criteria .”) ( internal quotation marks and citation

omitted )

.

And under the last factor, we are unconvinced that Infogroup will be

irreparably harmed with out immediate appellate review. The district court

instructed the bankruptcy court to “determine whether cause exists to toll the statute

of limitations to permit Infogroup to file the adversary complaint” if it finds “on5

remand that Infogroup can pursue the derivative actions.” Thus, any harm to

Infogroup caused by the limitations period could be cured by the courts below.

In sum, all four factors disfavor exercising jurisdiction over the district court’s

order

, and we will dismiss the cross

- appeal s rel ating to the Authority Motion for

lack of jurisdiction under 28 U.S.C. § 158(d) (1).

We dismiss the appeal of the sanctions order s for lack of jurisdiction

because the district court did not issue a final decision re garding sanctions. The

district court found that it lacked jurisdiction over the sanctions appeals because

they concerned nonfinal orders of the bankruptcy court. Accordingly, this court

has no decision from the district court to review. 1 And because the issu e of

sanctions may be affected by the resolution of the Authority Motion , a decision on

the merits of the sanctions orders would be premature.

The cross

- appeals of the district court’s order as to the Authority Motion and

the sanctions order s are DISMISSED for lack of jurisdiction under 28 U.S.C.

§ 158(d) (1).

1 Because we lack jurisdiction over the district court’s order, we do not decide here

whether the district court correct ly f ound that it lacked jurisdic tion over the

sanctions orders.