Richard Yocum v. Rockwell Medical Technologies , 614 F. App'x 915 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICHARD YOCUM, M.D., an individual, No. 13-55919
Plaintiff - Appellant, D.C. No. 3:12-cv-00568-GPC-
MDD
v.
ROCKWELL MEDICAL MEMORANDUM*
TECHNOLOGIES, INC., a Michigan
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted June 2, 2015
Pasadena, California
Before: FERNANDEZ, FISHER and BEA, Circuit Judges.
Richard Yocum appeals the summary judgment entered in favor of Rockwell
Medical Technologies on his claim under California law for wrongful termination
in violation of public policy. We have jurisdiction under 28 U.S.C. § 1291, we
review de novo, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Under California law, wrongful termination of employment in violation
of public policy may be based on a claim that the employer retaliated against the
employee for engaging in conduct protected by a public policy embodied in a
legislative source. The California Supreme Court has observed that retaliatory
termination cases generally fall into four categories, only the fourth of which is
relevant here: reporting an alleged violation of a law of public importance. See
Gantt v. Sentry Ins., 824 P.2d 680, 684 (Cal. 1992), overruled on other grounds by
Green v. Ralee Eng’g Co., 960 P.2d 1046 (Cal. 1998). To satisfy this requirement,
an employee must either “prove an actual violation of law” or show that “the
employer fired him for reporting his ‘reasonably based suspicions’ of illegal
activity.” Green, 960 P.2d at 1059.
Yocum has not met this standard with respect to either the U.S. Food and
Drug Administration’s (FDA) regulation governing the promotion of
investigational drugs, 21 C.F.R. § 312.7, or the U.S. Securities and Exchange
Commission’s regulation regarding the selective disclosure of material information
to investors, Regulation FD, 17 C.F.R. § 243.100. Yocum has not argued that
Rockwell engaged in an actual violation of these regulations. Additionally,
although he argues in his briefs that he reasonably believed Rockwell had violated
these regulations, he has not presented any evidence that he held those beliefs
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during the time he worked for Rockwell. At argument, Yocum’s counsel asked us
to review pages 776-79 and 784-85 of the excerpts of record. We have done so.
Nothing in those excerpts creates a triable issue that Yocum believed at the time of
his employment that Rockwell’s actions were illegal, or that he ever informed his
superiors at Rockwell that he believed their conduct might violate § 312.7 or
Regulation FD. In short, because he has not presented any evidence that he
reported an alleged violation of § 312.7 or Regulation FD during his tenure at
Rockwell, the district court properly granted summary judgment to Rockwell on
Yocum’s wrongful termination claims relying on these two regulations.
2. Yocum’s wrongful termination claim premised on Rockwell’s alleged
violations of FDA label requirements and International Conference on
Harmonisation (ICH) Principle 2.3 fails as well. For a policy to support a
wrongful discharge claim, it must be delineated in a constitutional, statutory or
regulatory provision. See Stevenson v. Superior Court, 941 P.2d 1157, 1161 (Cal.
1997); Green, 960 P.2d at 1054; Scott v. Phoenix Sch., Inc., 96 Cal. Rptr. 3d 159,
165 (Ct. App. 2009). Here, as Yocum’s attorney conceded at oral argument,
neither the FDA label requirements nor the ICH principles are delineated in
constitutional, statutory or regulatory provisions. The district court therefore
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properly granted summary judgment to Rockwell on Yocum’s wrongful
termination claim relying on these authorities.
3. Both the appellant and this court have been prejudiced in this matter by
the unprofessional conduct of Scott E. Combs, counsel for Rockwell. Combs’
answering brief failed to provide record citations, as Circuit Rule 28-2.8 requires.
See 9th Cir. R. 28-2.8 (“Every assertion in briefs regarding matters in the record
shall be supported by a reference to the location in the excerpts of record where the
matter is to be found.”); Circuit Advisory Committee Note to Rule 28-2
(“Sanctions may be imposed for failure to comply with this rule, particularly with
respect to record references.”); Mitchel v. Gen. Elec. Co., 689 F.2d 877, 879 (9th
Cir. 1982) (imposing sanctions for failing to provide record citations). In addition,
Combs failed to appear for oral argument and, although he later stated he had
misfiled a motion to appear by telephone, he was not in his office when the Deputy
Clerk called to inquire about his absence, causing significant inconvenience to the
court and appellant’s counsel, and he failed to confirm that his motion was granted
before disregarding his obligation to appear for argument. See Fed. R. App. P.
46(c) (“A court of appeals may discipline an attorney who practices before it for
conduct unbecoming a member of the bar or for failure to comply with any court
rule.”); McGinnis v. Anchorage Sch. Dist., 166 F.3d 343 (9th Cir. 1998) (mem.).
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Although we refrain from imposing sanctions, we admonish Combs that his
conduct in this matter does not satisfy the professional standards of this court. See
Latch v. United States, 842 F.2d 1031, 1032 n.1 (9th Cir. 1988).
Exercising our discretion under Rule 39, we deny costs to appellee. See Fed.
R. App. P. 39(a); Charles Alan Wright et al., 16AA Federal Practice and Procedure
§ 3985 (4th ed. 2015); cf. Ass’n of Mexican-Am. Educators v. State of California,
231 F.3d 572, 592 (9th Cir. 2000) (en banc) (noting that, under Federal Rule of
Civil Procedure 54, a district court has discretion to deny costs to a prevailing party
to account for that party’s misconduct).
Each party shall bear its own costs on appeal.
AFFIRMED.
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