Shahrokh Mireskandari v. Barrington Mayne ( 2020 )

NOT FOR PUBLICATION FILED
APR 6 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAHROKH MIRESKANDARI; PAUL No. 16-55547
BAXENDALE-WALKER, 17-55540
Plaintiffs-Appellants, D.C. No. 2:12-cv-03861-JGB-
MRW
v.
BARRINGTON MAYNE; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted February 4, 2020
San Francisco, California
Before: PAEZ and BEA, Circuit Judges, and JACK,** District Judge.
Shahrokh Mireskandari and Paul Baxendale-Walker appeal the district
court’s judgment dismissing their action with prejudice. They also appeal the
denial of their motion for an indicative ruling, made under Federal Rule of Civil
Procedure 62.1, that the district court would likely grant relief from the judgment
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Janis Graham Jack, United States District Judge for
under Federal Rule of Civil Procedure 60(b)(2) or (b)(3). We have jurisdiction
under 28 U.S.C. § 1291. We review the dismissal of the appellants’ complaint de
novo. DB Healthcare, LLC v. Blue Cross Blue Shield of Ariz., Inc., 852 F.3d 868,
873, n.5 (9th Cir. 2017). We review the district court’s denial of the Rule 62.1
motion, which served as a denial of the Rule 60(b) motion on the merits, for an
abuse of discretion. See Fed. R. Civ. P. 62.1(a)(2); United States v. Asarco, Inc.,
430 F.3d 972, 978 (9th Cir. 2005). We affirm.
The district court properly dismissed appellants’ claims against Barrington
Mayne, Malcolm Lees, David Middleton, Antony Townsend, and Richard Hegarty
because these defendants were entitled to common-law foreign sovereign
immunity. The allegations as to these defendants consistently stated that they
acted to further the objectives of foreign government entities, the Law Society of
England and Wales (“LSE”) and the Solicitors Regulation Authority (“SRA”).
Because the defendants performed the alleged conduct in their official capacities,
they are entitled to common-law foreign sovereign immunity. See Dogan v. Barak,
932 F.3d 888, 893-94 (9th Cir. 2019) (common-law foreign immunity shields
foreign officials from liability for “acts performed in their official capacity if the
effect of exercising jurisdiction would be to enforce a rule of law against the state.”
(alteration, citation, and internal quotation marks omitted)). The record does not
the Southern District of Texas, sitting by designation.
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support the appellants’ contention that these defendants waived common-law
foreign sovereign immunity as a defense by failing to raise it in their motion to
dismiss.
The district court properly dismissed the defamation claim against Mansur
Rahnema as barred by the litigation privilege. See Wang v. Heck, 137 Cal. Rptr.
3d 332, 337 (Ct. App. 2012) (discussing requirements for application of
California’s litigation privilege). Rahnema’s email to Dr. Farzam was covered by
the privilege because Rahnema was a witness in the LSE/SRA disciplinary
proceedings, and the email sought to convince Dr. Farzam to stop assisting
Mireskandari so that the proceedings could go forward. Rhanema’s phone call to
Mireskandari’s attorney, Michael Hayes, was made after this litigation began and
was thus covered by the privilege.
The district court properly dismissed the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) claim against Rahnema because appellants failed to
allege facts sufficient to show a predicate act. See United Bhd. of Carpenters &
Joiners of Am. v. Bldg. & Const. Trades Dep’t, AFL-CIO, 770 F.3d 834, 837 (9th
Cir. 2014) (stating the elements of a civil RICO claim). To the extent appellants
argue that Rahnema engaged in the predicate acts of witness tampering and
extortion, they forfeited this argument by failing to raise it in the district court.
See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
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The district court did not abuse its discretion by denying appellants’ motion
to compel discovery relating to sovereign immunity because appellants failed to
demonstrate actual and substantial prejudice resulting from the denial of the
requested discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)
(setting forth standard of review and explaining that a district court’s “decision to
deny discovery will not be disturbed except upon the clearest showing that denial
of discovery results in actual and substantial prejudice to the complaining litigant.”
(citation and internal quotation marks omitted)) The appellants’ operative
complaint alleges that defendants Mayne, Lees, Middleton, Townsend, and
Hegarty were working within their official capacities to advance the goals of the
LSE/SRA, and additional discovery would not have affected their eligibility for
common-law sovereign immunity.
The district court did not abuse its discretion in denying appellants’ motion
for an indicative ruling regarding relief from the judgment because appellants
failed to establish any basis for such relief. See Sch. Dist. No. 1J v. ACandS, Inc.,
5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and grounds
for relief from judgment under Fed. R. Civ. P. 60(b)). The district court’s finding
that appellants’ “newly discovered” evidence either could have been discovered
previously with reasonable diligence, or was cumulative of evidence already
considered, was not “illogical, implausible, or without support in inferences that
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may be drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1262
(9th Cir. 2009) (en banc). The same is true of the district court’s finding that
appellants lacked clear and convincing evidence that the judgment was obtained by
fraud.
Appellants’ request for “expeditious treatment and/or a limited remand for
discovery based on the ages of parities and witnesses” (Docket Entry No. 98 in
Appeal No. 16-55547; Docket Entry No. 55 in Appeal No. 17-55540) is denied as
moot.
AFFIRMED.
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