NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANDREW CHOI, No. 19-35154
Plaintiff − Appellant, D.C. No. 3:17−cv−02064−MO v.
REED INSTITUTE, DBA Reed College; MEMORANDUM* MARIELA SZWARCBERG DABY, individually,
Defendants − Appellees.
Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding
Argued and Submitted July 6, 2020 Portland, Oregon
Before: BENNETT and MILLER, Circuit Judges, and PEARSON, ** District Judge.
Plaintiff-Appellant Andrew Choi appeals the district court’s denial of his
Federal Rule of Civil Procedure Rule 56(d) motions for more discovery and the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation.
1 district court’s orders granting Reed College and Professor Daby’s motions for
summary judgment. Choi also appeals the court’s order granting Reed’s motion to
dismiss his Title IX claim. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court did not err in denying Choi’s Rule 56(d) motion seeking
more discovery from Daby. See Stevens v. Corelogic, Inc., 899 F.3d 666, 677 (9th
Cir. 2018) (noting standard of review for implicit denials of Rule 56(d) motions
depends on whether the information requested was relevant). Because we conclude
below that the contract term at issue is unambiguous, the district court did not
abuse its discretion because “the information sought would not have shed light” on
the meaning of the contract term under Oregon contract law. Id. (ellipses and
citation omitted).
But even reviewing the denial of the motion de novo, we would affirm.
Under Rule 56(d), Choi must “explain what further discovery would reveal that is
‘essential to justify [his] opposition’ to the motion[] for summary judgment.” Id. at
678 (second alteration in original) (citation omitted). He has not. Choi submitted
both a declaration and a memorandum of law in support of his Rule 56(d) motion.
Neither included the “specific facts” he hoped to obtain from discovery, much less
that there were any facts that were “essential to oppose summary judgment.” Id.
Choi’s reliance on Burlington North Santa Fe Railroad Co. v. Assiniboine &
2 Sioux Tribes, 323 F.3d 767 (9th Cir. 2003) is unpersuasive. First, because the
meaning of “collaborative” in the research grant contract is unambiguous, more
discovery on the meaning of the term would have been futile. See id. at 774.
Second, when Choi filed his Rule 56(d) motion, discovery had taken place and he
had obtained some of the information he sought from Daby. Because Choi had a
chance to serve and obtain discovery prior to filing his Rule 56(d) motion, he had a
“fair opportunity to develop the record.” Id. at 774-75 (noting that the district court
could entertain a motion for summary judgment after “some discovery is
concluded”).
Similarly, the district court did not abuse its discretion in denying Choi’s
Rule 56(d) motion seeking more discovery from Reed. See Tatum v. City and Cnty.
of San Francisco¸ 441 F.3d 1090, 1100 (9th Cir. 2006) (finding no abuse of
discretion when plaintiff did not satisfy the requirements of what was then Rule
56(f)). Again, Choi did not comply with the Rule’s requirements. Neither his
counsel’s affirmation nor the memorandum of law in support of the motion
identified “specific facts” that would have helped Choi avoid summary judgment.
See id. at 1100. While Choi did tell the district court that he sought witness
testimony in four issue areas and included copies of certain discovery requests, he
did not identify any information “essential” to avoiding summary judgment. Id.
The district court did not abuse its discretion because Choi did not meet the
3 requirements of Rule 56(d) in either form or substance.
2. Viewing the evidence in the light most favorable to Choi, see Pyramid
Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 818 (9th Cir. 2014), the
district court properly granted Daby and Reed’s motions for summary judgment.
Daby moved for summary judgment on the only claim asserted against her—
breach of contract regarding the Corbett research grant. We agree with the district
court that the term “collaborative” in the Corbett research grant is unambiguous as
a matter of law. See Williams v. RJ Reynolds Tobacco Co., 271 P.3d 103, 109 (Or.
2011) (noting a term is ambiguous “if its wording can, in context, reasonably be
given more than one plausible interpretation”); see also Yogman v. Parrott, 937
P.2d 1019, 1021 (Or. 1997) (“If the [contract] provision is clear, the analysis
ends.”). Nothing in the text of the Corbett grant discusses or concerns (either
expressly, or even implicitly) the added acknowledgement requirement Choi seeks
to read into the contract. Choi’s interpretation also cannot be squared with the
ordinary meaning of the word “collaborative.” Furthermore, while the grant has an
explicit acknowledgement requirement for the parties to identify the funding
source in any publication arising from the collaboration, there is no similar
requirement of attribution acknowledgement. Williams, 271 P.3d at 109 (“The
court must, if possible, construe the contract so as to give effect to all of its
provisions.”).
4 Even if we were to consider the extrinsic evidence Choi argues the district
court should have considered, it does not change the outcome. See Batzer Const.,
Inc. v. Boyer, 129 P.3d 773, 778 (Or. Ct. App. 2006) (noting courts may “consider
the circumstances underlying the formation of a contract to determine whether a
particular contractual provision is ambiguous”). Nothing Choi proffered explicitly
states that the Corbett grant requires acknowledgement for collaborative work. The
district court properly granted Daby’s summary judgment motion.
The district court also properly granted Reed’s motion for summary
judgment. Contrary to Choi’s assertion, Reed was not required to submit any
evidence in support of its motion for summary judgment on Choi’s breach of
contract claim⎯Choi bore the burden of persuasion at trial. See In re Oracle Corp.
Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Moreover, Reed properly relied on
Choi’s complaint, his deposition testimony, and other materials in the record. Fed.
R. Civ. P. 56(c)(1)(A).
Choi failed to adduce sufficient evidence that Reed materially breached its
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANDREW CHOI, No. 19-35154
Plaintiff − Appellant, D.C. No. 3:17−cv−02064−MO v.
REED INSTITUTE, DBA Reed College; MEMORANDUM* MARIELA SZWARCBERG DABY, individually,
Defendants − Appellees.
Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding
Argued and Submitted July 6, 2020 Portland, Oregon
Before: BENNETT and MILLER, Circuit Judges, and PEARSON, ** District Judge.
Plaintiff-Appellant Andrew Choi appeals the district court’s denial of his
Federal Rule of Civil Procedure Rule 56(d) motions for more discovery and the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation.
1 district court’s orders granting Reed College and Professor Daby’s motions for
summary judgment. Choi also appeals the court’s order granting Reed’s motion to
dismiss his Title IX claim. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court did not err in denying Choi’s Rule 56(d) motion seeking
more discovery from Daby. See Stevens v. Corelogic, Inc., 899 F.3d 666, 677 (9th
Cir. 2018) (noting standard of review for implicit denials of Rule 56(d) motions
depends on whether the information requested was relevant). Because we conclude
below that the contract term at issue is unambiguous, the district court did not
abuse its discretion because “the information sought would not have shed light” on
the meaning of the contract term under Oregon contract law. Id. (ellipses and
citation omitted).
But even reviewing the denial of the motion de novo, we would affirm.
Under Rule 56(d), Choi must “explain what further discovery would reveal that is
‘essential to justify [his] opposition’ to the motion[] for summary judgment.” Id. at
678 (second alteration in original) (citation omitted). He has not. Choi submitted
both a declaration and a memorandum of law in support of his Rule 56(d) motion.
Neither included the “specific facts” he hoped to obtain from discovery, much less
that there were any facts that were “essential to oppose summary judgment.” Id.
Choi’s reliance on Burlington North Santa Fe Railroad Co. v. Assiniboine &
2 Sioux Tribes, 323 F.3d 767 (9th Cir. 2003) is unpersuasive. First, because the
meaning of “collaborative” in the research grant contract is unambiguous, more
discovery on the meaning of the term would have been futile. See id. at 774.
Second, when Choi filed his Rule 56(d) motion, discovery had taken place and he
had obtained some of the information he sought from Daby. Because Choi had a
chance to serve and obtain discovery prior to filing his Rule 56(d) motion, he had a
“fair opportunity to develop the record.” Id. at 774-75 (noting that the district court
could entertain a motion for summary judgment after “some discovery is
concluded”).
Similarly, the district court did not abuse its discretion in denying Choi’s
Rule 56(d) motion seeking more discovery from Reed. See Tatum v. City and Cnty.
of San Francisco¸ 441 F.3d 1090, 1100 (9th Cir. 2006) (finding no abuse of
discretion when plaintiff did not satisfy the requirements of what was then Rule
56(f)). Again, Choi did not comply with the Rule’s requirements. Neither his
counsel’s affirmation nor the memorandum of law in support of the motion
identified “specific facts” that would have helped Choi avoid summary judgment.
See id. at 1100. While Choi did tell the district court that he sought witness
testimony in four issue areas and included copies of certain discovery requests, he
did not identify any information “essential” to avoiding summary judgment. Id.
The district court did not abuse its discretion because Choi did not meet the
3 requirements of Rule 56(d) in either form or substance.
2. Viewing the evidence in the light most favorable to Choi, see Pyramid
Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 818 (9th Cir. 2014), the
district court properly granted Daby and Reed’s motions for summary judgment.
Daby moved for summary judgment on the only claim asserted against her—
breach of contract regarding the Corbett research grant. We agree with the district
court that the term “collaborative” in the Corbett research grant is unambiguous as
a matter of law. See Williams v. RJ Reynolds Tobacco Co., 271 P.3d 103, 109 (Or.
2011) (noting a term is ambiguous “if its wording can, in context, reasonably be
given more than one plausible interpretation”); see also Yogman v. Parrott, 937
P.2d 1019, 1021 (Or. 1997) (“If the [contract] provision is clear, the analysis
ends.”). Nothing in the text of the Corbett grant discusses or concerns (either
expressly, or even implicitly) the added acknowledgement requirement Choi seeks
to read into the contract. Choi’s interpretation also cannot be squared with the
ordinary meaning of the word “collaborative.” Furthermore, while the grant has an
explicit acknowledgement requirement for the parties to identify the funding
source in any publication arising from the collaboration, there is no similar
requirement of attribution acknowledgement. Williams, 271 P.3d at 109 (“The
court must, if possible, construe the contract so as to give effect to all of its
provisions.”).
4 Even if we were to consider the extrinsic evidence Choi argues the district
court should have considered, it does not change the outcome. See Batzer Const.,
Inc. v. Boyer, 129 P.3d 773, 778 (Or. Ct. App. 2006) (noting courts may “consider
the circumstances underlying the formation of a contract to determine whether a
particular contractual provision is ambiguous”). Nothing Choi proffered explicitly
states that the Corbett grant requires acknowledgement for collaborative work. The
district court properly granted Daby’s summary judgment motion.
The district court also properly granted Reed’s motion for summary
judgment. Contrary to Choi’s assertion, Reed was not required to submit any
evidence in support of its motion for summary judgment on Choi’s breach of
contract claim⎯Choi bore the burden of persuasion at trial. See In re Oracle Corp.
Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Moreover, Reed properly relied on
Choi’s complaint, his deposition testimony, and other materials in the record. Fed.
R. Civ. P. 56(c)(1)(A).
Choi failed to adduce sufficient evidence that Reed materially breached its
disability accommodation policy, even if the policy were construed as a contract
between Reed and Choi. Reed’s disability policy requires a student to submit
appropriate documentation of a claimed disability. Nothing in the record shows
that Choi documented his hereditary hemorrhagic telangiectasia (severe
nosebleeds) to Reed (or, for that matter, to the district court).
5 Moreover, Reed twice accommodated Choi after he missed his thesis
defense (according to Choi’s complaint, because of a severe nosebleed). Choi’s
professors granted him an extension to rework his thesis through winter break.
Even after Choi failed to meet the deadline, Reed informed him he could re-enroll.
As Choi has not pointed to any evidence in the record suggesting that these
accommodations were unreasonable or contrary to Reed’s accommodation policy,
the district court correctly found there was no breach of the disability policy.
The district court also correctly found that Reed did not breach its sexual
harassment policy. Choi never told anyone of his alleged sexual relationship with
Daby until after he was no longer a student at Reed, two years after he claims the
relationship ended. Choi cites no evidence in the record nor alleges in his
complaint that Reed knew (or should have known) of Daby’s alleged actions he
claims violated the policy. Nor does he allege or introduce evidence that Daby had
had sexual relationships with other students and Reed knew and turned a blind eye.
Rather, the undisputed record shows Choi never told anyone of the alleged sexual
relationship while he was a student and is devoid of evidence that Reed was, or
should have been, on notice of Daby’s alleged actions. For these reasons, Choi has
not carried his burden to show there is a genuine dispute regarding whether Reed
6 breached its sexual harassment policy.1
3. The district court properly dismissed Choi’s Title IX claim as untimely
because the two-year statute of limitations had run, and Choi has pled no facts
showing otherwise. In response to Reed’s motion to dismiss his Title IX claim, he
presented no facts demonstrating that he was entitled to equitable tolling or
equitable estoppel and has not done so on appeal.2
Choi raised an equitable tolling argument before the district court, but on
appeal argues that equitable estoppel is the proper doctrine. Even if Choi had not
abandoned his equitable tolling argument on appeal, it would fail as he has not
shown he diligently pursued his rights or that some extraordinary circumstance
prevented him from timely filing suit. See Smith v. Davis, 953 F.3d 582, 590 (9th
Cir. 2020) (en banc) (explaining the two-prong test for equitable tolling).
Equitable estoppel focuses on the defendant’s action and “is based on the
principle that a party should not be allowed to benefit from its own wrongdoing.”
Estate of Amaro v. City of Oakland, 653 F.3d 808, 813 (9th Cir. 2011) (internal
1 Because we affirm on this ground, we need not reach the district court’s alternate conclusion that the sexual harassment policy allows the type of encounter alleged to have occurred here. 2 We address both of Choi’s equitable arguments despite Choi not raising equitable estoppel before the district court. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1185- 86 (9th Cir. 2001) (en banc) (noting that the two doctrines are distinct but often conflated and allowing plaintiff to raise an equitable tolling argument after previously relying on equitable estoppel) overruled on other grounds by Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en banc). 7 quotation marks and citation omitted). Thus, one of its core elements is
“detrimental reliance.” Id. Choi has not shown that he detrimentally relied on any
affirmative misrepresentation by Reed. Even if Choi can show he is entitled to
tolling through 2015, when he submitted a complaint to Reed against Daby,
nothing in the record or in the complaint shows Reed made any affirmative
misrepresentations from that time until the two-year statute of limitations expired.
Cf. id. at 815 (finding equitable estoppel applied when plaintiff was “dissuaded
from bringing the claim by affirmative misrepresentations and stonewalling by the
police”).
Choi argued below and on appeal that he is entitled to discovery to support
his position that his Title IX claims were not time-barred. He has shown no facts to
support his theory and cites no case law requiring more discovery when a plaintiff
has not sufficiently pled equitable estoppel. And Amaro counsels otherwise. 653
F.3d at 813 (noting that “the plaintiff carries the burden of pleading and proving . .
. elements of equitable estoppel” (emphasis added)). The district court properly
dismissed Choi’s Title IX claims as time-barred.
AFFIRMED.