Jinni Tech Ltd. v. red.com, Inc. ( 2021 )

FILED
NOT FOR PUBLICATION
JUL 19 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JINNI TECH LTD; BRUCE ROYCE, No. 20-35789
Plaintiffs-Appellants, D.C. No. 2:17-cv-00217-JLR
v.
MEMORANDUM*
RED.COM, INC.; RED.COM, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted June 9, 2021**
Seattle, Washington
Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges.
Jinni Tech Ltd. and its founder Bruce Royce (“Plaintiffs”) appeal from the
district court’s grant of summary judgment in favor of RED.com, Inc. and
*
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).
RED.com, LLC (together, “RED”). We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
First, Plaintiffs claim that comments posted online by RED’s president,
Jarred Land, accused Plaintiffs of stealing or hacking RED’s intellectual property
in order to develop what Plaintiffs describe as a competing product. Plaintiffs
argued in their First Amended Complaint and in their opposition to RED’s motion
for summary judgment that these statements amounted to defamation per se as to
Bruce Royce and trade libel as to Jinni Tech Ltd. under Washington law. See Life
Designs Ranch, Inc. v. Sommer, 364 P.3d 129, 134 (Wash. Ct. App. 2015); Auvil v.
CBS 60 Minutes, 67 F.3d 816, 820 (9th Cir. 1995). In granting summary judgment
in RED’s favor on these claims with respect to statements concerning unlawful or
criminal behavior, the district court relied solely on the ground that no such
statements were made by Land. In doing so, however, the district court appears to
have inadvertently overlooked Land’s statements and instead addressed only
comments posted by RED customers and fans. Accordingly, we vacate the
summary judgment order as to these two claims and remand to the district court to
allow it to consider whether Land’s comments constitute defamation per se or trade
libel. We leave for the district court to address, in the first instance, the parties’
additional arguments concerning these claims.
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Second, we affirm the district court’s grant of summary judgment as to
Plaintiffs’ other claims. These claims include intentional infliction of emotional
distress, negligent infliction of emotional distress, false light, tortious interference,
and violations under the Lanham Act and Washington’s Consumer Protection Act.
Plaintiffs cite no authority supporting their argument that damages presumed for
purposes of their defamation per se claim may be actual damages for the purposes
of these other claims. Plaintiffs’ argument fails, and we hold that the district court
correctly granted summary judgment as to these claims.
Each party shall bear its own costs.
VACATED in part, AFFIRMED in part.
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