Paskenta Band of Nomlaki Indians; Paskenta Enterprises Corporation v. Ines Crosby

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PASKENTA BAND OF NOMLAKI
INDIANS; PASKENTA ENTERPRISES
CORPORATION,
Plaintiffs - Appellants,
v.
INES CROSBY; JOHN CROSBY;
LESLIE LOHSE; LARRY LOHSE; TED
PATA; JUAN PATA; CHRIS PATA;
SHERRY MYERS; FRANK JAMES;
UMPQUA BANK; UMPQUA
HOLDINGS CORPORATION;
CORNERSTONE COMMUNITY BANK;
CORNERSTONE COMMUNITY
BANCORP; JEFFERY FINCK; GARTH
MOORE; GARTH MOORE
INSURANCE AND FINANCIAL
SERVICES, INC.; ASSOCIATED
PENSION CONSULTANTS, INC.;
HANESS & ASSOCIATES, LLC;
ROBERT M. HANESS; THE PATRIOT
GOLD & SILVER EXCHANGE, INC.;
NORMAN R. RYAN; QUICKEN
LOANS, INC., Nominal Defendant; CRP
111 WEST 141ST LLC, Nominal
Defendant; CASTELLAN MANAGING
No. 15-16654
D.C. No. 2:15-cv-00538-GEB-
CMK
MEMORANDUM*
FILED
JAN 09 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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MEMBER LLC, Nominal Defendant; CRP
WEST 168TH STREET LLC, Nominal
Defendant; CRP SHERMAN AVENUE
LLC, Nominal Defendant,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted March 18, 2016
San Francisco, California
Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.
Plaintiff-Appellants Paskenta Band of Nomlaki Indians and Paskenta
Enterprises Corporation (collectively the Tribe) appeal from the district court’s
denial of a motion for preliminary injunction to freeze the assets of Defendant-
Appellees Ines Crosby, John Crosby, Leslie Lohse, and Larry Lohse (collectively
Defendants). The Tribe contends that the district court abused its discretion by
applying an incorrect legal standard that required a heightened evidentiary
showing. Alternatively, the Tribe argues that the district court made clearly
erroneous factual findings.
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1. The district court had jurisdiction over this case. See 28 U.S.C. §
1362 (“The district courts shall have original jurisdiction of all civil actions,
brought by any Indian tribe or band with a governing body duly recognized by the
Secretary of the Interior, wherein the matter in controversy arises under the
Constitution, laws, or treaties of the United States.”).
2. We review a district court’s denial of a preliminary injunction for
abuse of discretion. See Cascadia Wildlands v. Thrailkill, 806 F.3d 1234, 1240
(9th Cir. 2015). However, to enable meaningful appellate review, a district court
must set forth findings of fact and conclusions of law supporting its order granting
or denying a preliminary injunction. See Fed. R. Civ. P. 52(a)(2) (“[I]n granting or
refusing an interlocutory injunction, the court must . . . state the findings and
conclusions of law that support its action.”). Because the district court order in this
case does not meet this standard, we “remand for further findings of fact and
conclusions of law” “to permit meaningful review.” Fed. Trade Comm’n v.
Enforma Nat. Prods., Inc., 362 F.3d 1204, 1212 (9th Cir. 2004), as amended.
In assessing whether the Tribe has met its burden under Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008), the district court should explain, on an
individualized basis, why the evidence does or does not show a likelihood of
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dissipation. See, e.g., Rep. of the Phil. v. Marcos, 862 F.2d 1355, 1362-64 (9th
Cir. 1988); cf. Johnson v. Couturier, 572 F.3d 1067, 1085 (9th Cir. 2009). In
addressing the Tribe’s state law claims for constructive trust and accounting, the
district court should also determine and explain whether the Tribe made specific
and individualized showings that each Defendant was likely to dissipate the
purportedly misappropriated assets. See Heckmann v. Ahmanson, 168 Cal. App. 3d
119, 136 (1985) (recognizing the availability of a constructive trust to prevent
dissipation of assets).
VACATED AND REMANDED.
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