Karen Ellingstad v. Kake Tribal Corporation

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2023
• Docket: 22-35569
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 11 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAREN E. ELLINGSTAD; CLIFFORD No. 22-35569 W. TAGABAN, D.C. No. 1:21-cv-00008-SLG Plaintiffs-Appellants,

v. MEMORANDUM*

KAKE TRIBAL CORPORATION; et al.,

Defendants-Appellees,

and

MICHAEL J. BARTLETT,

Defendant.

KAREN E. ELLINGSTAD; CLIFFORD No. 22-35768 W. TAGABAN, D.C. No. 1:21-cv-00008-SLG Plaintiffs-Appellants,

FRED W. TRIEM, Counsel for Plaintiffs,

Appellant,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, Chief District Judge, Presiding

Submitted December 7, 2023** Seattle, Washington

Before: McKEOWN, N.R. SMITH, and SANCHEZ, Circuit Judges.

Karen Ellingstad and Clifford Tagaban, hereinafter plaintiffs, appeal from

the district court’s grant of summary judgment to Kake Tribal Corporation and its

officers and employees named as individual defendants. Plaintiffs and their

attorney Fred Triem also challenge the district court’s award of sanctions under

Rule 11 of the Federal Rules of Civil Procedure. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 1. The district court did not abuse its discretion in denying plaintiffs’

motion to stay or defer consideration of summary judgment. Such a motion must

“show[] . . . that, for specified reasons,” a party “cannot present facts essential to

justify its opposition” to summary judgment without further discovery. Fed. R.

Civ. P. 56(d). “A district court abuses its discretion” in denying such a motion

only if the requesting party “can show that allowing additional discovery would

have precluded summary judgment.” Michelman v. Lincoln Nat’l Life Ins. Co.,

685 F.3d 887, 892 (9th Cir. 2012). Where “the information sought . . . would not

have shed light on any of the issues upon which the summary judgment decision

was based[,] . . . the additional discovery would not have precluded summary

judgment and was properly denied.” Qualls ex rel. Qualls v. Blue Cross of Cal.,

Inc., 22 F.3d 839, 844 (9th Cir. 1994).

Here, plaintiffs sought discovery into how defendants related to one another,

in order to demonstrate that defendants were responsible for invoices and threats

plaintiffs alleged they had received. However, this information “would not have

shed light on . . . the issues upon which the summary judgment decision was

based,” id., that is, plaintiffs’ failure to demonstrate that the invoices and threats

existed. As the district court noted, invoices and threats received by plaintiffs

would presumably be in their possession, but plaintiffs neither presented them nor

3 specified in their motion for deferral of summary judgment why they could not do

so. Thus, the motion was properly denied.

2. Plaintiffs do not challenge the district court’s conclusion that the

evidence before it did not establish a genuine factual dispute as to the claim

plaintiffs pleaded in their complaint. Instead, they argue that they may be entitled

to relief under other legal theories, or that they should have been permitted to

amend their complaint. These arguments are forfeited. Although “summary

judgment does not follow if the plaintiff is entitled ‘to relief on some [alternative]

legal theory’ and ‘requested as much,’” plaintiffs never asked to amend their

complaint, nor did they make any alternative request prior to the district court’s

summary judgment decision. Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 2008)

(quoting Crull v. GEM Ins. Co., 58 F.3d 1386, 1391 (9th Cir. 1995)); see also Self-

Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902,

912 (9th Cir. 1995) (“A party does not properly preserve an issue for appeal by

raising it for the first time in a motion for reconsideration.”). Plaintiffs only

suggested in passing (in their post-judgment brief opposing sanctions) that they

ought to be allowed to amend.

3. The district court did not abuse its discretion in denying oral argument

regarding summary judgment. Such a denial “does not constitute reversible error

4 in the absence of prejudice.” Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998)

(citation omitted). On appeal, plaintiffs’ perfunctory argument does not allege any

prejudice suffered due to the district court having reached a decision on this matter

without oral argument.

4. The district court did not abuse its discretion in awarding sanctions. The

complaint asserted that defendants periodically sent invoices for “demurrage” to

plaintiffs—Ellingstad and Tagaban. The record evidence supports an inference

that the invoices in question were not sent by the defendants and were not sent to

the plaintiffs, but rather to appellant Triem. The district court’s conclusion that

Triem knew or should have known that the factual contentions in plaintiffs’

complaint lacked evidentiary support is therefore not “illogical, implausible, or

without support in inferences that may be drawn from facts in the record.” In re

Oracle Corp. Sec. Litig., 627 F.3d 376, 385 (9th Cir. 2010).

Plaintiffs contend for the first time here that oral argument regarding

sanctions was necessary “to consider the income, wealth, [and] station in life of the

sanction target.” However, “[n]othing in Rule 11 mandates” this result. Christian

v. Mattel, Inc., 286 F.3d 1118, 1125 n.4 (9th Cir. 2002). Further, because plaintiffs

did not present this argument to the district court, it is forfeited.

AFFIRMED.