Elie Harfouche v. Haifa Wehbe , 705 F. App'x 589 ( 2017 )

FILED
NOT FOR PUBLICATION
DEC 1 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIE HARFOUCHE, No. 16-15688
Plaintiff-Appellant, D.C. No.
2:13-cv-00615-LDG-NJK
v.
HAIFA WEHBE; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Argued and Submitted November 14, 2017
San Francisco, California
Before: THOMAS, Chief Judge, PAEZ, Circuit Judge, and SAVAGE,** District
Judge.
Appellant Elie Harfouche appeals the district court’s orders granting Haifa
Wehbe’s motion for summary judgment and denying Harfouche’s motion for
discovery sanctions. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Timothy J. Savage, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
1. “We review de novo the district judge’s decision to grant summary
judgment to determine whether there are any genuine issues of material fact and
whether the district judge correctly applied the substantive law.” Hazle v. Crofoot,
727 F.3d 983, 990 (9th Cir. 2013); see also Fed. R. Civ. P. 56(a). An issue of
material fact is “genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). As the parties do not argue otherwise, Nevada principles of
contract law govern the performance and interpretation of the contract at issue.
The district court did not err in granting Wehbe’s motion for summary
judgment on Harfouche’s breach of contract claim. The parties’ contract required
Harfouche to “pay all the charges of the . . . entry visas” and “hand [Wehbe] . . .
entry visas” for her concert tour of the United States and Canada. The “Subject” of
the valid contract addendum stated that singer Ragheb Alame would accompany
Wehbe on tour. Harfouche, however, failed to obtain a United States entry visa for
Alame. Harfouche’s failure to do so defeated the essential purpose of the contract
by preventing Alame from entering the United States to perform with Wehbe, and
thus constituted a material breach. See 23 Williston on Contracts § 63:3 (4th ed.).
The district court properly determined under Nevada law that Harfouche’s material
breach excused Wehbe’s subsequent refusal to perform in the United States. See
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Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 536 (9th Cir. 2011); Thornton v.
Agassiz Const., Inc., 799 P.2d 1106, 1108 (Nev. 1990) (per curiam).
2. As the party moving for discovery sanctions, Harfouche “had the burden
of establishing spoliation by demonstrating that [Wehbe] destroyed documents and
had some notice that the documents were potentially relevant to the litigation
before they were destroyed.” Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 766
(9th Cir. 2015) (internal quotation marks omitted). “We review a district court’s
denial of a motion for sanctions based on spoliation of evidence for abuse of
discretion,” id. at 759, and we review underlying factual findings for clear error,
Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006).
Harfouche argues that Wehbe despoiled evidence when her assistant deleted
documents in her possession after the failed United States concert tour but prior to
litigation. Harfouche, however, has not demonstrated that Wehbe’s assistant
destroyed any documents relevant to the instant litigation. Furthermore, there is no
evidence that Wehbe was on notice of litigation when her assistant deleted the
documents in her possession. Because Harfouche has not carried his burden of
establishing spoliation, the district court did not abuse its discretion in declining to
impose discovery sanctions.
AFFIRMED.
3