Sandra Ferguson v. Brian Waid

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 8, 2020
• Docket: 18-36043
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SANDRA L. FERGUSON, Esquire, No. 18-36043

Plaintiff-counter- D.C. No. 2:17-cv-01685-RSM defendant-Appellant,

v. MEMORANDUM*

BRIAN J WAID, and the marital community thereof,

Defendant-counter-claimant- Appellee.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted December 13, 2019 Seattle, Washington

Before: GOULD and BERZON, Circuit Judges, and BENITEZ,** District Judge.

1. Sandra Ferguson appeals from the district court’s order dismissing her

§ 1983 claims against Brian Waid under Fed. R. Civ. P. 12(c). Ferguson fails to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation. state a § 1983 claim because Waid’s communications about Ferguson with the

Washington State Bar Association are immunized under the Noerr-Pennington

doctrine, and Ferguson’s Complaint does not plausibly allege application of the

sham exception. Empress LLC v. City & Cty. of San Francisco, 419 F.3d 1052,

1056-57 (9th Cir. 2005). Moreover, Ferguson’s Complaint does not plausibly

allege “state action,” as required to plead a § 1983 claim. See Franklin v. Fox, 312

F.3d 423, 444 (9th Cir. 2002) (“A civil rights plaintiff suing a private individual

under § 1983 must demonstrate that the private individual acted under color of

state law[.]”).

2. Ferguson appeals from the district court’s order imposing Rule 11

sanctions for her filing of a frivolous § 1983 claim against Waid. Ferguson did not

file a timely opposition to Waid’s motion for sanctions before the district court;

this Court declines to invoke its discretion to consider Ferguson’s arguments raised

for the first time on appeal. Cold Mountain v. Garber, 375 F.3d 884, 891 (9th Cir.

2004). Further, even considering the merits, the district court did not err in finding

Ferguson’s § 1983 claim to be frivolous.

3. Ferguson appeals from the district court’s order holding her Complaint

violated Washington’s Anti-SLAPP statute, RCW 4.24.510, and awarding $10,000

in statutory damages to Waid. Because a state’s Anti-SLAPP statute does not

apply to federal claims for relief, we reverse the district court’s finding on that

2 18-36043 claim, and strike the associated $10,000 award. Hilton v. Hallmark Cards, 599

F.3d 894, 901 (9th Cir. 2010) (an “anti-SLAPP statute does not apply to federal

law causes of action. . . . [A] federal court can only entertain anti-SLAPP special

motions to strike in connection with state law claims”); Martinez v. California, 444

U.S. 282, 284 n.8 (1980) (“Conduct by persons acting under color of state law

which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law”).

4. Ferguson appeals from the district court’s two orders denying summary

judgment. First, Ferguson cannot challenge the district court’s findings of fact on

appeal because she did not furnish the trial transcript. See Syncom Capital Corp. v.

Wade, 924 F.2d 167, 169 (9th Cir. 1991) (“Without a trial transcript, the majority

of [Appellant]’s contentions are unreviewable. We also agree that [Appellant]’s

failure in this respect justifies summary affirmance of the district court’s decision,

pursuant to Fed. R. App. P. 10(b)(2).”).

Second, as to the alleged errors Ferguson raises, her appeal of the orders

denying summary judgment in her favor on the defamation and harassment claims

is foreclosed by Ortiz v. Jordan, 562 U.S. 180 (2011), because a district court’s

orders denying summary judgment are not reviewable after a trial on the merits.

Here, following a trial on the merits, the district court made findings of fact and

conclusions of law about Waid’s defamation and civil harassment counterclaims.

Ferguson relies upon a pre-Ortiz exception, which permits review of “purely legal

3 18-36043 issues” after a trial on the merits, but this Court has not yet decided whether that

exception survives Ortiz. Moreover, even if it did, the exception would not apply

here where Ferguson does not raise “purely legal issues capable of resolution with

reference only to undisputed facts.” Williams v. Gaye, 895 F.3d 1106, 1122 (9th

Cir. 2018) (internal quotations omitted); cf. Banuelos v. Constr. Laborers’ Trust

Funds, 382 F.3d 897, 903 (9th Cir. 2004) (in ERISA case, examining purely legal

issue of whether district court “erred as a matter of law when it concluded it could

hear evidence outside the administrative record”).

Finally, the district court essentially granted partial summary judgment for

Waid when it “conclude[d] as a matter of law that Ms. Ferguson made statements

of fact, not opinion, when she stated that Mr. Waid engaged in fraudulent and

criminal activity,” and ordered that Ferguson was “precluded from raising this

defense at trial.” That conclusion was not in error. See Milkovich v. Lorain

Journal Co., 497 U.S. 1, 18-19 (1990) (a statement of opinion that reasonably

implies a false and defamatory statement of fact is actionable). “Even if the

speaker states the facts upon which he bases his opinion, if those facts are either

incorrect or incomplete, or if his assessment of them is erroneous, the statement

may still imply a false assertion of fact.” Id.

5. Ferguson appeals from the district court’s post-trial order, entering an

injunction “to protect Mr. Waid from further harassment.” The injunction is

4 18-36043 overbroad at section (a), which prohibits Ferguson generally “from contacting past

or present clients of Brian J. Waid, either in person, via telephone, or by electronic

communications.” Id. That prohibition is not supported by the district court’s

findings of fact or conclusions of law regarding defamation, as its effect is to

preclude Ferguson from having any communications with Waid’s clients,

including about topics unrelated to Waid or this lawsuit. Accordingly, we reverse

and remand with instructions to revise section (a) to add the underlined language:

“Sandra Ferguson is enjoined from repeating the same or effectively identical

statements found to be defamatory in this case to past or present clients of Brian J.

Waid, either in person, via telephone, or by electronic communications.” With that

modification, the injunction will be “tailored to eliminate only the specific harm

alleged.” E & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1297 (9th Cir.

1992). As to the remaining sections of the injunction, we affirm.

6. Both parties’ requests for attorneys’ fees are DENIED as premature and

as not supported by proper documentation. See Fed. R. App. P. 39-1.1

1 The pro se parties’ motions for judicial notice, Docket Entry Nos. 38, 53, 60, 67, 69, 97, and 110, are granted. The Court construes Ferguson’s motion, Docket Entry No. 116, to strike a duplicate filing as seeking to strike Docket Entry No. 115. The motion is granted, and the Clerk shall strike the motion submitted at Docket Entry No. 115. The Court construes Ferguson’s motion to supplement the record, Docket Entry No. 111, as a request for judicial notice made pursuant to Fed. R. Evid. 201, and the motion is granted.

5 18-36043 AFFIRMED in part, REVERSED in part, and REMANDED.

6 18-36043