Asa Williams, Jr. v. Carmen Mays-Williams , 712 F. App'x 682 ( 2018 )

FILED
NOT FOR PUBLICATION
FEB 20 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAWRENCE M BECKER, as fiduciary of No. 16-35191
the Xerox Corporation Savings Plan and
Xerox Corporation Retirement Income D.C. No. 3:11-cv-05830-BHS
Guarantee Plan,
Plaintiff, MEMORANDUM*
v.
CARMEN STEPHANIE MAYS-
WILLIAMS,
Defendant-Appellee,
ASA WILLIAMS, Jr., as personal
representative of the Estate of Asa Willie
Williams,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted February 6, 2018**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Before: FISHER, GOULD and PAEZ, Circuit Judges.
Asa Williams, Jr., appeals the judgment entered by the district court in favor
of Carmen Stephanie Mays-Williams in this dispute over the decedent Asa
Williams, Sr.’s employer-sponsored savings and retirement plans. We review the
district court’s factual findings for clear error, its conclusions of law de novo and
its evidentiary rulings for an abuse of discretion, see Wagner v. County of
Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2013); Bertelsen v. Harris, 537 F.3d
1047, 1056 (9th Cir. 2008), and we affirm.
1. We reject Asa Junior’s contention that his father strictly complied with
the terms of the plans for changing beneficiaries. After viewing all of the
evidence, the district court found Asa Junior “failed to establish that Asa Sr. was
the individual who called Xerox to change the beneficiary designation.” Asa
Junior’s does not distinctly challenge that finding in his opening brief, and even if
he did so, he has not shown the finding is clearly erroneous. Asa Junior did not
present admissible, persuasive evidence that it was Asa Senior who made the three
phone calls to Xerox. The district court’s finding is not “illogical, implausible, or
without support in inferences that may be drawn from facts in the record.” United
States v. Hinkson, 585 F.3d 1247, 1251, 1263 (9th Cir. 2009) (en banc).
2
2. We also reject Asa Junior’s argument that Asa Senior substantially
complied with the plans’ requirements for changing beneficiaries. Under
Washington law, “[s]ubstantial compliance requires that the insured has manifested
an intent to change beneficiaries and done everything reasonably possible to make
that change.” In re Estate of Freeberg, 122 P.3d 741, 743 (Wash. Ct. App. 2005).
Here, the district court’s finding that Asa Senior neither manifested an intent to
change beneficiaries nor did everything reasonably possible to make that change is
not clearly erroneous. The district court reasonably made this finding given Asa
Senior’s failure to sign, date and return the authorization forms and evidence
regarding his amicable relationship with Carmen, his strained relationship with Asa
Junior and his intent to provide for his children equally.
3. The district court did not abuse its discretion by declining to exclude
evidence under Washington’s Deadman’s Statute, Wash. Rev. Code § 5.60.030. In
Erickson v. Robert F. Kerr, M.D., P.S., Inc., 883 P.2d 313, 317 (Wash. 1994), the
Washington Supreme Court, citing Maciejczak v. Bartell, 60 P.2d 31, 36 (Wash.
1936), said the “deadman statute only applies to actions brought on behalf of [the]
estate.” Here, Asa Junior is seeking benefits for himself, in his personal capacity,
not in his capacity as a representative of Asa Senior’s estate. See Aetna Life Ins.
3
Co. v. Boober, 784 P.2d 186, 190 (Wash. Ct. App. 1990). The Deadman’s statute
therefore does not apply. See id. at 189-90 & n.21.
4. The district court did not abuse its discretion by excluding the transcript
of the January 10, 2011 phone call for lack of authentication. Asa Junior shows
why this evidence was relevant under 29 C.F.R. § 2560.503-1(m)(8), but he does
not explain how it was authenticated. See Fed. R. Evid. 901(a) (“To satisfy the
requirement of authenticating or identifying an item of evidence, the proponent
must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.”).
AFFIRMED.
4