Judges: Trott, Ikuta, Faber (S.D. W.Va.) Oral argument: 4/21/17, San Francisco. Totally gut sense prediction: Reversed.
It was hard to glean the facts underlying this dispute from just the oral argument, but the legal issue was pretty clear: can a District Court make credibility determinations at the summary judgment level? If the panel is even asking you as counsel that question, you’re probably in bad shape. Judge Trott sounded genuinely bewildered at how he could be expected to affirm a summary judgment ruling that contained as many comments about witness credibility as the lower court’s ruling did. A court can do so at a trial, of course. But these lawyers appeared to have submitted briefs only, followed by oral argument that was not an evidentiary hearing.
Muddying the waters further was the fact that the lower court’s ruling included fact findings that the lawyers for the appellants may have engaged in misrepresentations to the court. Those lawyers fervently made their case to the panel that such findings were wrong, and that they didn’t have a proper opportunity to address them below. Judge Trott and the rest of the panel seemed potentially receptive to that point.
I looked up the underlying case to satisfy my curiosity. The dispute arises out of an expensive piece of equipment that was sitting in an ocean port in California. One side demanded that the equipment not be moved, whereas the other wanted to ship it out to New Zealand. As Judge Trott observed, the lower court’s ruling addressing the issues repeatedly made references like this one: “This testimony is not credible, and the court does not believe it.” Yikes. The court can do that at trial. It can’t on summary judgment. I expect a reversal here.