Apantac, LLC v. Avitech International Corp. , 692 F. App'x 854 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
APANTAC, LLC, an Oregon limited No. 14-35900
liability,
D.C. No. 3:11-cv-01507-BR
Plaintiff-Appellant,
v. MEMORANDUM*
AVITECH INTERNATIONAL
CORPORATION, a Washington
corporation; JYH CHERN GONG, AKA
Morris Gong,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted June 5, 2017**
Portland, Oregon
Before: TASHIMA, GOULD, and RAWLINSON, Circuit Judges.
Apantac, LLC (Apantac) sued Avitech International Corporation (Avitech)
and its principal Jyh Chern Gong (also known as Morris Gong, hereinafter referred
*
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).
to as Gong), asserting intentional interference with a business relationship.
Apantac asserts that Avitech/Gong, through Taiwanese Silicon Video Systems,
Inc. (SVS), initiated criminal and civil complaints in Taiwan against Elite Image,
Ltd. (Elite), Apantac’s Taiwanese sister company, and Elite’s employees. The
district court granted summary judgment in favor of Avitech/Gong, concluding that
Apantac did not establish a protectable relationship with Elite. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm although on a different ground.
Apantac did not allege cognizable damages.
This diversity action arises under Oregon law. Under Oregon law,
[t]o state a claim for intentional interference with economic relations, a
plaintiff must allege each of the following elements: (1) the existence
of a professional or business relationship (which could include, e.g., a
contract or a prospective economic advantage),
(2) intentional interference with that relationship, (3) by a third party,
(4) accomplished through improper means or for an improper purpose,
(5) a causal effect between the interference and damage to the
economic relationship, and (6) damages.
McGanty v. Staudenraus, 901 P.2d 841, 844 (Or. 1995) (en banc).
The district court characterized Apantac and Elite’s relationship as one that
arises from the litigation between Elite and SVS. A relationship that is formed
because of litigation is not the type of professional or business relationship
susceptible to the tort of intentional interference with a business relationship. See
Fox v. Country Mut. Ins. Co., 7 P.3d 677, 690 (Or. Ct. App. 2000). We disagree
with the district court’s characterization of Apantac and Elite’s relationship. That
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relationship is based on Apantac’s work with Elite “in the designing and
manufacturing of various products that are sold by” Apantac. Apantac, however,
does not clearly define the nature of this relationship—characterizing it both as a
principal-agent relationship and as a contractor-subcontractor relationship.
We need not determine the exact nature of Apantac and Elite’s relationship.
Even assuming (without deciding) that Apantac and Elite’s relationship is
protectable and that Avitech/Gong tried to interfere with that relationship through
SVS, we affirm the district court’s grant of summary judgment in favor of
Avitech/Gong because Apantac did not establish that it suffered cognizable
damages as a result of that interference. See Gordon v. Virtumundo, Inc., 575 F.3d
1040, 1047 (9th Cir. 2009) (we may affirm a grant of summary judgment “on any
basis supported by the record”).
Apantac claims as “damages” the legal costs Elite incurred (and Apantac
reimbursed) in defending the suits against SVS. Apantac’s arguments that it was
legally obligated to indemnify Elite are not persuasive. There was no contract that
required Apantac to provide for or reimburse Elite’s legal costs. There is no basis
for a legal obligation under the common law theories of unjust enrichment or
indemnity under these circumstances. Because Apantac did not assert cognizable
damages, summary judgment in favor of Avitech/Gong was proper.
AFFIRMED.
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