Terrance Walker v. Intelli-Heart Services, Inc.

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NOT FOR PUBLICATION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’
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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
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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.
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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.
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