Okorie Okorocha v. Patrick Duff

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 07 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
OKORIE OKOROCHA, an individual, No. 12-56930
Plaintiff-Counter-Defendant/ D.C. No. 2:12-cv-04248-GAF-
Appellant, FFM
v.
MEMORANDUM and ORDER*
PATRICK DUFF, an individual,
Defendant-Counter-Claimant/
Appellee.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted December 9, 2014**
Pasadena, California
Before: GILMAN,*** GRABER, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
Appellant Okorie Okorocha (“Okorocha”) appeals the district court’s denial
of his motion to strike under California’s anti-Strategic Lawsuits Against Public
Participation (“anti-SLAPP”) statute, California Civil Procedure Code Section
425.16. Okorocha filed his anti-SLAPP motion in response to appellee Patrick
Duff’s (“Duff”) libel counterclaim in a civil suit brought by Okorocha.1
Resolution of an anti-SLAPP motion requires a court to engage in a two-step
process. In order to prevail, the moving party, here Okorocha, first must make a
“prima facie showing that [his] suit arises from an act by [him] made in connection
with a public issue in furtherance of [his] right to free speech under the United
States or California Constitution.” Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir.
2003); Cal. Civ. Proc. Code § 425.16. The burden then shifts to the opposing
party, here Duff, “to establish a reasonable probability that [he] will prevail on
[his] claim in order for that claim to survive dismissal.” Makaeff v. Trump Univ.,
LLC, 715 F.3d 254, 261 (9th Cir. 2013).
On appeal, Okorocha argues that his statements about Duff are protected
speech because they relate to the public issue of drug dealing and because Duff has
made his drug dealing a public issue. But Okorocha waived these arguments by
not making them below. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063
1
Because the parties are familiar with the facts, we do not recite them here.
2
n.3 (9th Cir. 2007). Okorocha also improperly supports these new arguments with
documents that were not before the district court when it denied his anti-SLAPP
motion and should not have been included by Okorocha in the excerpts of record.
See, e.g., Lowry v. Barnhart, 329 F.3d 1019, 1024-26 (9th Cir. 2003); Cmty.
Commerce Bank v. O'Brien (In re O’Brien), 312 F.3d 1135, 1136-37 (9th Cir.
2002) (order). Okorocha’s argument that his statements are protected speech
because they were made in a public forum in response to Duff’s negative review of
Okorocha’s legal services has also been waived because Okorocha did not
meaningfully develop this argument below or on appeal. See Christian Legal
Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 487-88 (9th Cir. 2010) (order).
Accordingly, Okorocha has failed to meet his burden under the first step of the
anti-SLAPP motion.
The district court’s denial of Okorocha’s anti-SLAPP motion to strike is
AFFIRMED. Okorocha’s motion for judicial notice is GRANTED.2
2
The district court may wish to consider whether dismissal of the pendent
state claims presented in this case is appropriate. Okorocha’s Anticybersquatting
Consumer Protection Act claim, which is the only federal claim in this case, may
be moot given that the website okorieokorocha.com now appears to be run by
Okorocha.
3