NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 30 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ROBERT GARY FURST, AKA Robert No. 24-2895 Furst, D.C. No. 2:21-cv-01287-DLR Plaintiff - Appellant,
v. MEMORANDUM*
LINDA MAYNE, AKA Linda Furst Mayne; STEPHEN S. MAYNE,
Defendants - Appellees.
Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding
Submitted May 15, 2025 ** Phoenix, Arizona
Before: RAWLINSON, BUMATAY, and SANCHEZ, Circuit Judges. Dissent by Judge BUMATAY.
Robert Furst (Furst) appeals the district court’s order denying his motion for
partial summary judgment and granting summary judgment in favor of Linda 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). Stephen Mayne. Reviewing de novo, we affirm. See Day v. Henry, 129 F.4th
1197, 1202 (9th Cir. 2025).
In October 2020, Furst filed a Petition for Repayment (Reimbursement
Petition) in state court alleging that he “stepped in and loaned the necessary funds
to Hanna Furst 1 (together with additional funds for her rent, groceries, medical
care, prescription drugs, medical supplies, medical equipment, and medical
transport).” In November 2021, Furst filed his First Amended Complaint in
federal court, alleging that from May to September 2019, in reliance on “Linda[]
[Mayne’s] prior representations,” he used “his own personal funds . . . to defray
[Hanna’s] monthly living expenses, including her rent, groceries, 24/7 nursing
home care, prescription drugs, medical equipment, and medical supplies.” In
September 2022, Furst reached a settlement with the Furst Family Trust (the Trust)
in the amount of $200,000, contingent on dismissal of the Reimbursement Petition
with prejudice.
“[I]f a plaintiff brings two causes of action—one state and one federal—that
arise from the same operative facts and seek relief for the same harm, the trial
court must assure that the plaintiff recovers only once.” Teutscher v. Woodson,
835 F.3d 936, 954 (9th Cir. 2016) (citation omitted).
Furst’s claim in the federal action and his claim in the state Reimbursement
1 Hanna Furst (Hanna) is the mother of Robert Furst and Linda Mayne.
2 24-2895 Petition are premised on the same injury, using his personal funds to cover
Hanna’s living expenses, and arise from the same alleged wrong—Linda Mayne’s
misrepresentations of future reimbursement. Because Furst’s injury was made
whole by the $200,000 settlement with the Trust, he is precluded from seeking
further relief for this asserted injury. See id.
We are unpersuaded by Furst’s argument that the $200,000 settlement award
did not reimburse him for advances made before October 1, 2019, when Linda
Mayne served as a Co-Trustee of the Trust. The Settlement Agreement resolved
the Reimbursement Petition, which sought relief for advances Furst made while
Linda served as a Co-Trustee. Additionally, in the Joint Report submitted by Furst
and the Successor Trustee, Furst characterized the Reimbursement Petition as
“seek[ing] repayment for all funds [Furst] advanced to provide for Hanna’s
demonstrated medical needs and living expenses.” (emphasis added). Nothing in
these filings limited the scope of the reimbursement to advancements made after
October 1, 2019.
Our colleague in dissent relies on one sentence in the Settlement Agreement
to reverse the district court’s decision. In the mutual release provision, that
sentence reads: “The parties understand and acknowledge that this release does
not extend [to] Linda Mayne.” However, that single sentence does not nullify the
other provisions of the Settlement Agreement confirming that the settlement
3 24-2895 encompassed the same claims asserted by Furst against Linda Mayne, including:
The second Whereas clause acknowledging that the dispute arose “regarding the administration of or claims against the Trust”;
The third Whereas clause acknowledging that the Petition for Repayment of Loans (Reimbursement Petition) was filed because “Trust Assets . . . Were Unavailable.”;
The fifth Whereas clause, acknowledging that the Reimbursement Petition and the case filed in federal court against Linda Mayne were “the Litigation.”
Read in its entirety, the Settlement Agreement is consistent with the Joint
Report submitted by Furst and the Successor Trustee characterizing the
Reimbursement Petition as “seek[ing] repayment for all funds [Furst] advanced to
provide for Hanna’s demonstrated medical needs and living expenses.” “[A]ll
funds advanced” necessarily includes those funds Furst now seeks to recover from
Linda Mayne.
Furst also represented in his court filings that the settlement was intended to
compensate him for “all advances made by him,” with no indication of a temporal
limit. In his Response to Defendants’ Motion to Dismiss, he stated that “the
Reimbursement Petition is totally consistent with [the] First Amended Complaint
in this case, because both actions arise out of the improper administration of the
Family Trust, which was caused solely by . . . Linda Mayne’s fiduciary
wrongdoing, including her fiduciary acts of fraud.” He also acknowledged that
“[b]oth claims are predicated on . . . Linda Mayne’s present intention not to
4 24-2895 perform when she stated to [Furst] that she would reimburse him from the Family
Trust for all advances made by him for Hanna’s living expenses.”
Furst’s argument that a Probate Bar Order entered on September 21, 2021,
prevented him from seeking reimbursement for advances he made before October
1, 2019, was raised for the first time in this case in his Opening Brief, and is
therefore forfeited. See Borja v. Nago, 115 F.4th 971, 986 n.4 (9th Cir. 2024). In
any event, nothing in any state court order in this record prohibited Furst from
seeking reimbursement for advancements made before October 1, 2019. 2
AFFIRMED.
2 Although the district court discussed an October 22, 2020 Probate Bar Order in its Order Denying Furst’s Motion for Reconsideration, the court noted that this order was not part of the record. See United States v. W.R. Grace, 504 F.3d 745, 766 (9th Cir. 2007).
5 24-2895 FILED MAY 30 2025 Furst v. Mayne, No. 24-2895 MOLLY C. DWYER, CLERK BUMATAY, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Plaintiffs can, and often do, settle lawsuits for less than the full amount of their
injury. Indeed, one might expect settlement talks to succeed only if the plaintiff
agrees to settle for less than he is due in exchange for an early and certain end to
litigation. In light of this common practice, Linda Mayne fails to show at summary
judgment that Robert Furst’s federal claim will result in an impermissible double
recovery. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 30 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ROBERT GARY FURST, AKA Robert No. 24-2895 Furst, D.C. No. 2:21-cv-01287-DLR Plaintiff - Appellant,
v. MEMORANDUM*
LINDA MAYNE, AKA Linda Furst Mayne; STEPHEN S. MAYNE,
Defendants - Appellees.
Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding
Submitted May 15, 2025 ** Phoenix, Arizona
Before: RAWLINSON, BUMATAY, and SANCHEZ, Circuit Judges. Dissent by Judge BUMATAY.
Robert Furst (Furst) appeals the district court’s order denying his motion for
partial summary judgment and granting summary judgment in favor of Linda 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). Stephen Mayne. Reviewing de novo, we affirm. See Day v. Henry, 129 F.4th
1197, 1202 (9th Cir. 2025).
In October 2020, Furst filed a Petition for Repayment (Reimbursement
Petition) in state court alleging that he “stepped in and loaned the necessary funds
to Hanna Furst 1 (together with additional funds for her rent, groceries, medical
care, prescription drugs, medical supplies, medical equipment, and medical
transport).” In November 2021, Furst filed his First Amended Complaint in
federal court, alleging that from May to September 2019, in reliance on “Linda[]
[Mayne’s] prior representations,” he used “his own personal funds . . . to defray
[Hanna’s] monthly living expenses, including her rent, groceries, 24/7 nursing
home care, prescription drugs, medical equipment, and medical supplies.” In
September 2022, Furst reached a settlement with the Furst Family Trust (the Trust)
in the amount of $200,000, contingent on dismissal of the Reimbursement Petition
with prejudice.
“[I]f a plaintiff brings two causes of action—one state and one federal—that
arise from the same operative facts and seek relief for the same harm, the trial
court must assure that the plaintiff recovers only once.” Teutscher v. Woodson,
835 F.3d 936, 954 (9th Cir. 2016) (citation omitted).
Furst’s claim in the federal action and his claim in the state Reimbursement
1 Hanna Furst (Hanna) is the mother of Robert Furst and Linda Mayne.
2 24-2895 Petition are premised on the same injury, using his personal funds to cover
Hanna’s living expenses, and arise from the same alleged wrong—Linda Mayne’s
misrepresentations of future reimbursement. Because Furst’s injury was made
whole by the $200,000 settlement with the Trust, he is precluded from seeking
further relief for this asserted injury. See id.
We are unpersuaded by Furst’s argument that the $200,000 settlement award
did not reimburse him for advances made before October 1, 2019, when Linda
Mayne served as a Co-Trustee of the Trust. The Settlement Agreement resolved
the Reimbursement Petition, which sought relief for advances Furst made while
Linda served as a Co-Trustee. Additionally, in the Joint Report submitted by Furst
and the Successor Trustee, Furst characterized the Reimbursement Petition as
“seek[ing] repayment for all funds [Furst] advanced to provide for Hanna’s
demonstrated medical needs and living expenses.” (emphasis added). Nothing in
these filings limited the scope of the reimbursement to advancements made after
October 1, 2019.
Our colleague in dissent relies on one sentence in the Settlement Agreement
to reverse the district court’s decision. In the mutual release provision, that
sentence reads: “The parties understand and acknowledge that this release does
not extend [to] Linda Mayne.” However, that single sentence does not nullify the
other provisions of the Settlement Agreement confirming that the settlement
3 24-2895 encompassed the same claims asserted by Furst against Linda Mayne, including:
The second Whereas clause acknowledging that the dispute arose “regarding the administration of or claims against the Trust”;
The third Whereas clause acknowledging that the Petition for Repayment of Loans (Reimbursement Petition) was filed because “Trust Assets . . . Were Unavailable.”;
The fifth Whereas clause, acknowledging that the Reimbursement Petition and the case filed in federal court against Linda Mayne were “the Litigation.”
Read in its entirety, the Settlement Agreement is consistent with the Joint
Report submitted by Furst and the Successor Trustee characterizing the
Reimbursement Petition as “seek[ing] repayment for all funds [Furst] advanced to
provide for Hanna’s demonstrated medical needs and living expenses.” “[A]ll
funds advanced” necessarily includes those funds Furst now seeks to recover from
Linda Mayne.
Furst also represented in his court filings that the settlement was intended to
compensate him for “all advances made by him,” with no indication of a temporal
limit. In his Response to Defendants’ Motion to Dismiss, he stated that “the
Reimbursement Petition is totally consistent with [the] First Amended Complaint
in this case, because both actions arise out of the improper administration of the
Family Trust, which was caused solely by . . . Linda Mayne’s fiduciary
wrongdoing, including her fiduciary acts of fraud.” He also acknowledged that
“[b]oth claims are predicated on . . . Linda Mayne’s present intention not to
4 24-2895 perform when she stated to [Furst] that she would reimburse him from the Family
Trust for all advances made by him for Hanna’s living expenses.”
Furst’s argument that a Probate Bar Order entered on September 21, 2021,
prevented him from seeking reimbursement for advances he made before October
1, 2019, was raised for the first time in this case in his Opening Brief, and is
therefore forfeited. See Borja v. Nago, 115 F.4th 971, 986 n.4 (9th Cir. 2024). In
any event, nothing in any state court order in this record prohibited Furst from
seeking reimbursement for advancements made before October 1, 2019. 2
AFFIRMED.
2 Although the district court discussed an October 22, 2020 Probate Bar Order in its Order Denying Furst’s Motion for Reconsideration, the court noted that this order was not part of the record. See United States v. W.R. Grace, 504 F.3d 745, 766 (9th Cir. 2007).
5 24-2895 FILED MAY 30 2025 Furst v. Mayne, No. 24-2895 MOLLY C. DWYER, CLERK BUMATAY, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Plaintiffs can, and often do, settle lawsuits for less than the full amount of their
injury. Indeed, one might expect settlement talks to succeed only if the plaintiff
agrees to settle for less than he is due in exchange for an early and certain end to
litigation. In light of this common practice, Linda Mayne fails to show at summary
judgment that Robert Furst’s federal claim will result in an impermissible double
recovery. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In both his now-dismissed contract suit against Zia Trust in Maricopa County
Superior Court and this fraud suit against Mayne, Furst sought to recover the same
$433,000. He claims that Mayne caused him to advance this sum to their mother
through false promises of repayment out of their family trust. Furst eventually
settled his claim against Zia Trust for $200,000—less than half of what he sought in
court. Of course, the majority is right that we must ensure Furst “recovers only
once.” Teutscher v. Woodson, 835 F.3d 936, 954 (9th Cir. 2016). But that principle
doesn’t get us very far here.
The Settlement Agreement between Furst and Zia Trust doesn’t say that Furst
was only injured in the amount of $200,000—just that Furst will waive his claims
against Zia Trust in exchange for that amount. In fact, the Settlement Agreement
explicitly states that “this release does not extend [to] Linda Mayne.” Thus, I
disagree that Furst was necessarily made whole by the $200,000 settlement with the 1 Trust. At bottom, the mere fact of settlement with one party doesn’t wipe out Furst’s
claim against another party.
Absent some other basis for summary judgment, this case should have
proceeded to trial so Furst could attempt to prove that (1) Mayne was liable to him
for fraud and (2) he suffered $433,000 in damages. The district court would then
properly prevent double recovery by discounting any damages owed by Mayne by
the $200,000 value of the Settlement Agreement. See Convoy Corp. v. Sperry Rand
Corp., 601 F.2d 385, 388–89 (9th Cir. 1979). Extinguishing Furst’s claim here
disincentivizes plaintiffs suing multiple defendants from taking advantage of
settlement offers proposed by some but not all of them. That cuts against the well-
established “policy of federal courts … to promote settlement before trial.” Franklin
v. Kaypro Corp., 884 F.2d 1222, 1225 (9th Cir. 1989).
I respectfully dissent.