Randi Alexander v. Kathryn Falk ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDI ALEXANDER; JACKSON No. 19-16758
YOUNG,
D.C. No.
Plaintiffs-Appellants, 2:16-cv-02268-MMD-DJA
v.
MEMORANDUM*
KATHRYN FALK; ROMANTIC TIMES,
INC., DBA Romantic Times Magazine,
Defendants-Appellees,
and
JANE DOE, AKA Gracie Wilson,
Defendant.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted August 13, 2020
San Francisco, California
Before: HAWKINS and CHRISTEN, Circuit Judges, and GRITZNER,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
Randi Alexander1 and Jackson Young appeal the district court’s dismissal of
their Lanham Act claims and grant of summary judgment as to their other claims in
favor of Kathryn Falk and Romantic Times, Inc. (RT). Default was entered against
a third defendant, Gracie Wilson, who is not a party to this appeal. The claims
arise out of statements Falk and Wilson allegedly made about Alexander and
Young during and shortly after an RT convention in Las Vegas, Nevada in April
2016. We have jurisdiction pursuant to 28 U.S.C. § 1291 and, on de novo review,
Elliott v. Google, Inc., 860 F.3d 1151, 1155 (9th Cir. 2017), we affirm.
1. To establish their Lanham Act libel/commercial disparagement and false
advertising claims, Appellants must show “an injury to a commercial interest in
reputation or sales,” and “economic or reputational injury flowing directly from the
deception wrought by the defendant’s advertising[.]” Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 131–33 (2014). Here, the district court
correctly found Appellants could not maintain their trade libel/commercial
disparagement and false advertising claims because they failed to provide non-
speculative evidence of deception. See Loomis v. Cornish, 836 F.3d 991, 997 (9th
Cir. 2016). Further, Appellants failed to show that any alleged misrepresentations
1
Randi Alexander is a pen name and Jackson Young is a stage name. The
district court granted Alexander and Young leave to proceed under pseudonyms up
until the time of trial.
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proximately caused a cognizable injury. Lexmark, 572 U.S. at 140. We therefore
affirm the district court’s dismissal of Appellants’ Lanham Act claims.
The district court’s grant of summary judgment as to Appellants’ consumer
fraud and deceptive trade practices claim based on the same allegations is also
affirmed. See Nev. Rev. Stat. § 598.0915(8). Appellants’ request for injunctive
relief was premised on their Lanham Act and consumer fraud/deceptive trade
practices claims, which the district court properly dismissed; therefore, the grant of
summary judgment on the injunctive relief claims was also appropriate.
2. On this record, the defamation, business disparagement, and false light
claims do not survive summary judgment. Under Nevada law, Appellants’
defamation claims require proof of, among other things, “a false and defamatory
statement.” Clark Cty. Sch. Dist. v. Virtual Educ. Software, Inc., 213 P.3d 496,
503 (Nev. 2009) (quoting Pope v. Motel 6, 114 P.3d 277, 282 (Nev. 2005)). Even
in Appellants’ best light, none of their proffered statements support a defamation
claim—not the May 2015 text message to Young, Wilson’s 2016 Facebook post,2
and Appellants’ suggestion that Falk spread rumors of an affair between Alexander
2
The district court’s order incorrectly attributed Facebook posts by RT and
Falk made on May 3, 2016, which indicated Young was “banned” from RT
conventions, as having occurred in 2017. However, the error is of no ultimate
moment because, incorrect date aside, Appellants have failed to identify sufficient
evidence that Falk’s or RT’s statements about receiving reports of allegations
against Young were false.
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and Young. Further, although statements “imputing serious sexual misconduct”
are considered defamatory per se and do not require proof of damages, the record
does not contain sufficient evidence to support Appellants’ claim on these grounds.
See K-Mart Corp. v. Washington, 866 P.2d 274, 282 (Nev. 1993), receded from on
other grounds by Pope, 114 P.3d at 317. What’s more, the allegations that Falk
spread rumors of blackmail against Young to an RT convention attendee are belied
by the attendee’s testimony, and Appellants’ self-serving testimony to the contrary
does not survive summary judgment. See Range Rd. Music, Inc. v. E. Coast
Foods, Inc., 668 F.3d 1148, 1152 (9th Cir. 2012) (“A ‘conclusory, self-serving
affidavit, lacking detailed facts and any supporting evidence’ is insufficient to
create a genuine issue of material fact.” (quoting FTC v. Publ'g Clearing House,
Inc., 104 F.3d 1168, 1171 (9th Cir. 1997))). And because Appellants failed to
identify evidence that Falk or RT’s statements are false and disparaging, their
business disparagement and false light claims fail, too. See Clark Cty. Sch. Dist.,
213 P.3d at 504–05 (noting a business disparagement claim additionally requires
proof of malice); Flowers v. Carville, 310 F.3d 1118, 1132–33 & n. 14 (9th Cir.
2002) (noting this court will “affirm dismissal of the false light claims where we
have affirmed dismissal of the parallel defamation claims”). As such, the district
court’s grant of summary judgment as to these claims is affirmed.
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3. We affirm the district court’s grant of summary judgment on Appellants’
intentional interference with contractual relations and prospective economic
damages claims based on lack of evidence. Specifically, even though Appellants
point to record evidence that other conventions cut ties with Young after
allegations were made against him, they cite no evidence that Falk or RT knew of
his relationships with those conventions, communicated allegations to the
convention organizers, or otherwise intended to disrupt Young’s relationship with
the conventions. Appellants have identified no evidence in the record
substantiating Falk and RT knew of and intended to interfere with any other
contracts or prospective contractual relationships. See Keenan v. Allan, 91 F.3d
1275, 1279 (9th Cir. 1996) (“[I]t is not our task, or that of the district court, to
scour the record in search of a genuine issue of triable fact.”). Thus, these claims
fail.
4. The record does not contain sufficient proof of “extreme and outrageous
conduct with either the intention of, or reckless disregard for, causing emotional
distress” to support Appellants’ intentional infliction of emotional distress claim.
Olivero v. Lowe, 995 P.2d 1023, 1025 (Nev. 2000) (quoting Barmettler v. Reno
Air, Inc., 956 P.2d 1382, 1386 (Nev. 1998)). The conduct complained of—Falk
and RT’s reports of having received complaints regarding Young’s behavior and
Facebook posts—were not “beyond the bounds of decency” to qualify as extreme
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and outrageous. Abrams v. Sanson, 458 P.3d 1062, 1069–70 (Nev. 2020) (first
citing Olivero, 995 P.2d at 1025; then citing Maduike v. Agency Rent-A-Car, 953
P.2d 24, 26 (Nev. 1998) (per curiam)).
5. Last, Appellants’ civil conspiracy and concert of action claim rests on our
acceptance of their spoliation argument. “[A] trier of fact may draw an adverse
inference from the destruction of evidence relevant to a case” in part because of its
deterrent effect and because “a party who has notice that a document is relevant to
litigation and who proceeds to destroy the document is more likely to have been
threatened by the document than is a party in the same position who does not
destroy the document.” Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991)
(quoting Nation-Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d 214,
218 (1st Cir. 1982)). Here, although a jury could have drawn an adverse inference
that Young never sent inappropriate text messages to Wilson, even while viewing
the evidence in the light most favorable to Alexander and Young, there is an
inadequate basis to infer the missing texts/emails showed an agreement between
Falk and Wilson to defame Young. With this element missing, the civil conspiracy
and concert of action claim fails.
AFFIRMED
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