Terrance Walker v. Intelli-Heart Services, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 2021
• Docket: 20-15688
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 23 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRANCE WALKER, ex rel. United Nos. 20-15688 States, 20-16341

Plaintiff-Appellant, D.C. No. 3:18-cv-00132-MMD-CLB v.

INTELLI-HEART SERVICES, INC.; MEMORANDUM* DANNY WEISBURG; VANNESSA PARSONS; DANIEL L. GERMAIN,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Submitted September 22, 2021** San Francisco, California

Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.

* 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). Terrance Walker appeals the dismissal of his diversity action against

Defendants Intelli-Heart Services, Inc. (“IHS”), Danny Weisberg, Vanessa

Parsons, and Daniel Germain (collectively, “Defendants”). We affirm.

The district court did not err by granting Defendants’ special motions to

dismiss under Nevada’s Strategic Lawsuit Against Public Participation (“anti-

SLAPP”) statutes. Nev. Rev. Stat. §§ 41.635–41.670. Defendants met their

burden of showing that Walker’s claims were based on their good-faith

communications with the United States Department of Veterans Affairs (“VA”).

See Nev. Rev. Stat. § 41.637(1); Abrams v. Sanson, 458 P.3d 1062, 1066 (Nev.

2020). The district court did not have to accept Walker’s legal conclusion that he

was IHS’s subcontractor under certain Federal Acquisition Regulations as true.

Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Under

Nevada substantive law, which governs this action, Walker did not have a

contractual relationship with IHS. See Ferguson ex rel. McLeod v. Coregis Ins.

Co., 527 F.3d 930, 932 (9th Cir. 2008) (per curiam); Simmons Self-Storage

Partners, LLC v. Rib Roof, Inc., 331 P.3d 850, 856–57 (Nev. 2014); Edwards v.

Carson Water Co., 34 P. 381, 386 (Nev. 1893). Walker’s assertion that

Defendants made false statements to the VA about the timeliness of their payments

to non-party James Winters is beside the point; the “gist” of Defendants’

2 communications to the VA was that Walker was not IHS’s subcontractor. Smith v.

Zilverberg, 481 P.3d 1222, 1228 (Nev. 2021).

Further, Walker did not plausibly allege claims for tortious interference with

contractual relations and unjust enrichment. See Planned Parenthood Fed’n of

Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 833–34 (9th Cir. 2018). He had

no actionable claim for tortious interference because James Winters could not bind

IHS to an agreement that it would not terminate the distributor agreement with

Winters. To the extent that the contract between Winters and Walker purported to

do so, it violated the terms of the contract between Winters and IHS and thus was

invalid. See J.J. Indus., LLC v. Bennett, 71 P.3d 1264, 1267 (Nev. 2003) (per

curiam). The mere termination of Winters’ contract with IHS did not create a

tortious interference with any contract between Walker and Winters. See id. at

1268. And to the extent that Walker argues that he has direct contractual rights

against IHS as Winters’ assignee, that too would violate the terms of the agreement

between Winters and IHS. Winters could not assign his personal services contract

to Walker without IHS’s consent. See Restatement (Second) of Contracts § 318

cmt. c (Am. L. Inst. 1981); cf. HD Supply Facilities Maint., Ltd. v. Bymoen, 210

P.3d 183, 186 (Nev. 2009) (en banc). As a result, the district court properly held

3 that Walker could not state a claim for tortious interference with contractual

relations.

Similarly, Walker cannot state a plausible claim for unjust enrichment

because his allegations show that IHS did not know that it was Walker’s efforts,

rather than Winters’ efforts alone, that led to the acquisition of VA contracts. See

Certified Fire Prot., Inc. v. Precision Constr., Inc., 283 P.3d 250, 257 (Nev. 2012);

cf. Allegiant Air, LLC v. AAMG Mktg. Grp., LLC, No. 64182, 2015 WL 6709144,

at *3 (Nev. Oct. 29, 2015) (unpublished) (citing Dragt v. Dragt/DeTray, LLC, 161

P.3d 473, 482 (Wash. Ct. App. 2007)); Restatement (Third) of Restitution &

Unjust Enrichment § 2 (Am. L. Inst. 2011). Nor does Walker plausibly allege

inequitable circumstances. See Certified Fire, 283 P.3d at 257; Korte Constr. Co.

v. State ex rel. Bd. of Regents of Nevada Sys. of Higher Educ., No. 80736, __ P.3d

__, __, 2021 WL 3237198, at *3 (Nev. July 29, 2021) (en banc). Walker may have

had a reasonable expectation of payment from Winters, but he did not have a

reasonable expectation of payment from IHS. Thus, the district court properly held

that Walker could not state a claim for unjust enrichment. It was not error for the

district court to grant Defendants’ anti-SLAPP motions.

The district court did not abuse its discretion by denying Walker further

discovery before ruling on Defendants’ anti-SLAPP motions. See Qualls ex rel.

4 Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 844 (9th Cir. 1994); see also

United States v. Hinkson, 585 F.3d 1247, 1261–63 (9th Cir. 2009) (en banc). The

anti-SLAPP motions, and the court’s analysis, were based on legal deficiencies in

the operative complaint and its attachments. See Planned Parenthood, 890 F.3d at

834; see also Warren, 328 F.3d at 1139, 1141 n.5.

Likewise, it was not an abuse of discretion to deny Walker’s motion for an

indicative ruling under Federal Rule of Civil Procedure 62.1. Walker was not

entitled to relief from judgment under Federal Rule of Civil Procedure 60(b). See

McCarthy v. Mayo, 827 F.2d 1310, 1318 (9th Cir. 1987); De Saracho v. Custom

Food Mach., Inc., 206 F.3d 874, 880–81 (9th Cir. 2000).

We deny Germain’s request for sanctions for a frivolous appeal because it

was not separately filed. See Fed. R. App. P. 38; Padgett v. Wright, 587 F.3d 983,

986 (9th Cir. 2009) (per curiam).

AFFIRMED.