Aaron Doyle v. Brian Chase , 434 F. App'x 656 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AARON DOYLE, No. 10-35545
Plaintiff - Appellant, D.C. No. 2:09-cv-00158-RHW
v.
MEMORANDUM *
BRIAN CHASE; LAW OFFICES OF
BRIAN CHASE PLLC,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted May 2, 2011
Seattle, Washington
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
Plaintiff Aaron Doyle appeals the district court’s grant of summary
judgment in his action under the Computer Fraud and Abuse Act (“CFAA”), 18
U.S.C. § 1030, against Brian Chase and the Law Offices of Brian Chase
(collectively, “Chase”). Doyle asserts that Chase violated the CFAA by accessing,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
without Doyle’s authorization, Doyle’s USB thumb drive, which contained
personnel records sealed by the California state court. Doyle contends that he
satisfied the “loss” requirement as defined by 18 U.S.C. § 1030(e)(11) because of
his need for a forensic computer expert to detect and delete all of the documents
that were copied from the thumb drive to Chase’s computers.
The district court concluded that even accepting Doyle’s theory of loss, his
assessment of loss is entirely speculative. We agree. Doyle bases his loss
assessment solely on two expert declarations. The district court correctly
concluded that the discussion of damages in the first declaration was too
speculative to survive summary judgment. See e.g., Soremekun v. Thrifty Payless,
Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Conclusory, speculative testimony in
affidavits and moving papers is insufficient to raise genuine issues of fact and
defeat summary judgment.”). The second, which attempts to calculate the basis for
the future expenditure of more than $5,000, was submitted well beyond the
discovery deadlines. The district court did not abuse its discretion by refusing to
consider this untimely declaration. See, e.g., Yeti by Molly, Ltd. v. Deckers
Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).
AFFIRMED.
2