American National Property and v. Steve Camp , 671 F. App'x 569 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN NATIONAL PROPERTY No. 14-35244
AND CASUALTY COMPANY,
D.C. No. 9:11-cv-00101-DWM
Plaintiff-Appellee,
v. MEMORANDUM*
STEVE WAYNE CAMP,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted December 15, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Steve Wayne Camp (“Camp”) appeals a civil judgment against him arising
from his violation of a non-compete agreement with American National Property
*
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).
and Casualty Co. (“American National”). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
The parties are familiar with the facts and procedural history of the case, so
we do not repeat them here except as necessary to explain our decision. In this
appeal, the second in this case, Camp challenges 1) the district court’s final
judgment against him on American National’s claim that he violated the parties’
non-compete agreement, and 2) the district court’s grant of summary judgment
against him on his six counterclaims arising from the same dispute.
In the prior appeal, Camp challenged a permanent injunction against him,
issued after a trial in which the jury found that he had violated his non-compete
agreement with American National. The district court determined that the non-
compete agreement met the requirements for enforceability under Montana law:
The jury found that American National had a legitimate business interest in
preventing competition from Camp as required under Wrigg v. Junkermier, Clark,
Campanella, Stevens, P.C., 265 P.3d 646, 650 (Mont. 2011), and the court
concluded as a matter of law that the terms of the agreement were reasonable as
required by O’Neill v. Ferraro, 596 P.2d 197, 199 (Mont. 1979). In light of the
determination that the non-compete agreement was enforceable, the district court
issued a permanent injunction against Camp. On appeal, a three-judge panel of
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this Court dismissed as moot Camp’s challenges to the first two paragraphs of the
injunction, which prohibited Camp from soliciting or accepting business from his
former clients. The panel upheld the third and final paragraph of the injunction,
prohibiting Camp from using American National’s proprietary information and
trade secrets. Am. Nat’l Prop. & Cas. Co. v. Camp, 542 F. App’x 559, 560 (9th
Cir. 2013).
Camp now reiterates the arguments he made in the first appeal, contending
that the non-compete agreement is unenforceable because its terms are
unreasonable and that American National does not have a legitimate business
interest in protecting itself from competition under these terms. However, a panel
of this Court has already addressed these challenges. “Under the law of the case
doctrine, ‘one panel of an appellate court will not as a general rule reconsider
questions which another panel has decided on a prior appeal in the same case.’”
Disimone v. Browner, 121 F.3d 1262, 1266 (9th Cir. 1997) (quoting Kimball v.
Callahan, 590 F.2d 768, 771 (9th Cir. 1979)). This doctrine applies equally
whether the relevant issue was “decided explicitly or by necessary implication in
the previous disposition.” Id. (quoting Milgard Tempering, Inc. v. Selas Corp. of
America, 902 F.2d 703, 715 (9th Cir. 1990)) (internal alterations omitted).
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Here, by upholding the non-expired portion of the injunction in the first
appeal, the prior panel decided “by necessary implication” that the non-compete
agreement — on which the injunction was based — was enforceable. There would
have been no way for the panel to reach this decision and uphold any portion of the
injunction without concluding that the agreement was valid. Accordingly, we
decline to re-consider Camp’s challenges to the enforceability of the non-compete
agreement.
Although Camp ostensibly appealed the order granting summary judgment
against him on his counterclaims, Camp’s briefing did not address this order or
present any arguments relating to the counterclaims. We generally construe the
pleadings and briefs of pro se litigants leniently, Ward v. Ryan, 623 F.3d 807, 810
& n.4 (9th Cir. 2010), but even a pro se litigant waives an issue by failing to
address it at all in his or her briefing, Paladin Associates, Inc. v. Montana Power
Co., 328 F.3d 1145, 1164 (9th Cir. 2003) (“By failing to make this argument in its
opening brief, [the appellant] waived its objection to the district court’s grant of
summary judgment . . . .”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro
se litigants must follow the same rules of procedure that govern other litigants.”),
overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir.
2012). Here, where Camp failed to contest or even mention the district court’s
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grant of summary judgment on his counterclaims, any objection to that decision
has been waived.
For these reasons, we affirm the district court’s grant of summary judgment
in favor of American National on each of Camp’s counterclaims, and we affirm the
final judgment against Camp on American National’s claim for breach of the non-
compete agreement.
AFFIRMED.
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