The Lance and Linda Neibauer J v. Michael Kurgan , 695 F. App'x 190 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE LANCE AND LINDA NEIBAUER Nos. 15-35050
JOINT TRUST, an Oregon Trust, by and 16-35201
through Lance Neibauer, as Trustee,
D.C. No. 6:14-cv-01192-MC
Plaintiff-Appellee,
v. MEMORANDUM*
MICHAEL J. KURGAN, an individual,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Michael J. Kurgan appeals pro se from the district court’s grant of summary
judgment for The Lance and Linda Neibauer Joint Trust (“Trust”) in its diversity
action alleging breach of contract and intentional interference with contract.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Kurgan also appeals from the post-judgment order awarding fees and costs. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Brayton Purcell
LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010) (personal
jurisdiction); Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009) (summary
judgment). We may affirm on any ground supported by the record. San Jose
Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1030 (9th Cir. 2004). We
affirm.
Appeal No. 15-35050
Personal jurisdiction over Kurgan in Oregon was proper because Kurgan
purposefully availed himself of the privilege of conducting activities in Oregon and
the claims arise out of Kurgan’s Oregon-related activities. See Schwarzenegger v.
Fred Martin Motor Co., 374 F.3d 797, 802-803 (9th Cir. 2004) (three-part test for
minimum contacts); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985) (jurisdiction is proper where it is the actions of the defendant that create a
substantial connection with the forum state).
The district court did not abuse its discretion in denying Kurgan’s motion to
transfer venue under 28 U.S.C. § 1406(a) because a substantial part of the events
giving rise to the claim occurred in the District of Oregon. See Costlow v. Weeks,
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790 F.2d 1486, 1488 (9th Cir. 1986) (transfer of venue is proper only in cases
where it is in the interests of justice); Central Valley Typographical Union No. 46
v. McClatchy Newspapers, 762 F.2d 741, 745 (9th Cir. 1985) (standard of review).
The district court properly granted summary judgment to the Trust on its
breach of contract claim because Kurgan failed to raise a genuine dispute of
material fact as to whether he complied with the unambiguous terms of the
contract. See Slover v. Or. State Bd. of Clinical Soc. Workers, 927 P.2d 1098,
1101-02 (Or. App. 1996) (elements of breach of contract).
The district court properly granted summary judgment to the Trust on their
intentional interference with contract claim because Kurgan failed to raise a
genuine dispute of material fact as to whether he did not use improper means to
interfere with a business relationship and whether the Trust did not incur damages
as a result. See Buckner v. Home Depot U.S.A., Inc., 71 P.3d 150, 152 (Or. App.
2003) (elements of intentional interference with contract).
The district court properly denied Kurgan’s special motion to strike under
Oregon’s anti-SLAPP statute because Kurgan did not make a prima facie case that
his statements were made in the connection with a judicial proceeding. See
Schwern v. Plunkett, 845 F.3d 1241, 1245 (9th Cir. 2017) (analysis under Oregon
3 15-35050
anti-SLAPP statute); see also Or. Rev. Stat. § 31.150(3).
The district court did not clearly err in awarding $26,422 in damages to the
Trust for its intentional interference with contract claim. See Simeonoff v. Hiner,
249 F.3d 883, 893 (9th Cir. 2001) (standard of review); Milgard Tempering, Inc. v.
Selas Corp. of Am., 902 F.2d 703, 710 (9th Cir. 1990) (this court will not disturb
an award of damages unless it is clearly unsupported by the evidence or it shocks
the conscience).
Appeal No. 16-35201
The district court did not abuse its discretion in awarding fees and costs to
the Trust because Kurgan’s failure to respond to discovery requests was not
substantially justified. See Fed. R. Civ. P. 37(a)(5)(A) (district court must require
the party whose conduct necessitated a successful motion to compel to pay
reasonable expenses, including attorney’s fees, unless the party’s nondisclosure
was substantially justified); Patelco Credit Union v. Sahni, 262 F.3d 897, 912-13
(9th Cir. 2001) (standard of review).
We reject as without merit Kurgan’s argument that the district court
deprived him of an opportunity to conduct discovery.
We do not consider allegations raised for the first time on appeal. See
4 15-35050
Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).
AFFIRMED.
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