Randolph Peterson v. Port of Benton County ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 17 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDOLPH PETERSON, qui tam as No. 20-35004
Relator; TRI-CITY RAILROAD
COMPANY LLC, a Washington limited D.C. No. 2:17-cv-00191-TOR
liability company; as a Washington
corporation and as relator,
MEMORANDUM*
Plaintiffs-Appellants,
and
UNITED STATES OF AMERICA,
Plaintiff,
v.
PORT OF BENTON COUNTY, a
Washington State Municipal Entity;
SCOTT KELLER, individually and as
Executive Director of Port of Benton,
PETER ROGALSKY, individually and as
Public Works Director of the City of
Richland; CITY OF RICHLAND, a
Washington State Municipal entity,
Defendants - Appellees,
and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ROBERT LARSON, individually and as
Commissioner of Port of Benton; ROY
KECK, individually and as Commissioner
of Port of Benton; JANE HAGERTY,
individually and as Commissioner of the
Port of Benton,
Defendants.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted March 2, 2021
Seattle, Washington
Before: RAWLINSON and BYBEE, Circuit Judges, and MOSKOWITZ,** District
Judge.
This case arises from an action filed by Plaintiffs-Appellants Tri-City
Railroad Company, LLC (TCRY), and Randolph Peterson, TCRY’s president
(collectively Plaintiffs), against Defendant-Appellee Port of Benton (Port) and
Defendant-Appellee City of Richland (Richland). Plaintiffs pursued claims
pursuant to 42 U.S.C. § 1983 for violations of the First Amendment against both
Defendants. Plaintiffs also filed an action against Port under the False Claims Act
(FCA), and a tortious interference claim against Richland. Plaintiffs appeal the
grant of summary judgment in favor of Defendants and the award of attorney’s
**
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
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fees to Port under the FCA. Reviewing the grant of summary judgment de novo
and the award of attorney’s fees for an abuse of discretion, we affirm. See Cates v.
Stroud, 976 F.3d 972, 978 (9th Cir. 2020) (summary judgment); see also Cafasso,
U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1063 (9th Cir. 2011)
(attorney’s fees).
1. Plaintiffs failed to raise a material issue of fact on their § 1983 claim
against Richland alleging retaliation for exercising First Amendment rights. See
Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 753 (9th Cir. 2001), as
amended (requiring the existence of “a genuine issue of material fact” to avoid
summary judgment). Plaintiffs proffered no persuasive evidence that termination
of TCRY’s agreement was motivated by the filing of the Surface Transportation
Board (STB) action. See Sampson v. Cnty. of Los Angeles by & through Los
Angeles Cty. Dep’t of Child. & Family Servs., 974 F.3d 1012, 1019 (9th Cir. 2020)
(requiring a showing of “retaliatory animus”) (citation and internal quotation
marks omitted). Timing alone did not establish the requisite connection because
the complained-of conduct took place over two years after TCRY petitioned the
STB. See Keyser, 265 F.3d at 752 (describing “over two years” as “insufficient”
proximity).
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2. Plaintiffs also failed to raise a material issue of fact on their § 1983
claim against Port alleging retaliation for exercising First Amendment rights,
because Port’s threat of legal action was not objectively baseless. See Sosa v.
DIRECTV, Inc., 437 F.3d 923, 929, 940 (9th Cir. 2006) (so holding).
3. Plaintiffs’ FCA claim alleged that Port falsely represented to the
Railroad Retirement Board (RRB) that “[n]othing of significance has changed
since the RRB’s 2001 determination.” However, the RRB reviewed the documents
presented by Plaintiffs and concluded that any changes in conditions did not
convert Port into a “covered employer” liable for railroad pensions and benefits.
See 45 U.S.C. § 231(a)(1); see also Railroad Ventures, Inc., B.C.D. 00–47 at 4-5
(served Nov. 7, 2000). Therefore, the district court correctly determined that
Plaintiffs’ FCA claim did not survive summary judgment. See United States ex rel.
Kelly v. Serco, Inc., 846 F.3d 325, 331-36 (9th Cir. 2017) (affirming grant of
summary judgment when requirements of the FCA not met).
4. Plaintiffs failed to raise a material issue of fact on their tortious
interference claim against Richland. Richland had an absolute right to insist that
Union Pacific (UP) comply with its contractual obligations with Richland, even if
that insistence caused UP to terminate its agreement with TCRY. See Joy v. Kaiser
Aluminum & Chem. Corp., 816 P.2d 90, 92 (Wash. Ct. App. 1991).
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5. An award of attorney’s fees to the defendant is warranted under the
FCA “if the defendant prevails and the court finds that the claim of the person
bringing the action was clearly frivolous.” 31 U.S.C. § 3730(d)(4). The district
court did not abuse its discretion in determining that Plaintiffs’ FCA claim was
frivolous because the RRB agreed with Port that no substantial change had
occurred. Consequently, Plaintiffs’ claim of falsity lacked any merit.
AFFIRMED.1
1
Because Plaintiffs failed to raise a material issue of fact on any of their
claims, we need not decide whether Plaintiffs’ damages experts were properly
excluded. See Immigration & Naturalization Serv. v. Bagamasbad, 429 U.S. 24,
25 (1976) (explaining that courts are not generally required to decide issues that
are “unnecessary to the results they reach”).
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