The Lance and Linda Neibauer J v. Michael Kurgan

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 16 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THE LANCE AND LINDA NEIBAUER Nos. 15-35050 JOINT TRUST, an Oregon Trust, by and 16-35201 through Lance Neibauer, as Trustee, D.C. No. 6:14-cv-01192-MC Plaintiff-Appellee,

v. MEMORANDUM*

MICHAEL J. KURGAN, an individual,

Defendant-Appellant.

Appeals from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

Michael J. Kurgan appeals pro se from the district court’s grant of summary

judgment for The Lance and Linda Neibauer Joint Trust (“Trust”) in its diversity

action alleging breach of contract and intentional interference with contract.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Kurgan also appeals from the post-judgment order awarding fees and costs. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Brayton Purcell

LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010) (personal

jurisdiction); Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009) (summary

judgment). We may affirm on any ground supported by the record. San Jose

Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1030 (9th Cir. 2004). We

affirm.

Appeal No. 15-35050

Personal jurisdiction over Kurgan in Oregon was proper because Kurgan

purposefully availed himself of the privilege of conducting activities in Oregon and

the claims arise out of Kurgan’s Oregon-related activities. See Schwarzenegger v.

Fred Martin Motor Co., 374 F.3d 797, 802-803 (9th Cir. 2004) (three-part test for

minimum contacts); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475

(1985) (jurisdiction is proper where it is the actions of the defendant that create a

substantial connection with the forum state).

The district court did not abuse its discretion in denying Kurgan’s motion to

transfer venue under 28 U.S.C. § 1406(a) because a substantial part of the events

giving rise to the claim occurred in the District of Oregon. See Costlow v. Weeks,

2 15-35050 790 F.2d 1486, 1488 (9th Cir. 1986) (transfer of venue is proper only in cases

where it is in the interests of justice); Central Valley Typographical Union No. 46

v. McClatchy Newspapers, 762 F.2d 741, 745 (9th Cir. 1985) (standard of review).

The district court properly granted summary judgment to the Trust on its

breach of contract claim because Kurgan failed to raise a genuine dispute of

material fact as to whether he complied with the unambiguous terms of the

contract. See Slover v. Or. State Bd. of Clinical Soc. Workers, 927 P.2d 1098,

1101-02 (Or. App. 1996) (elements of breach of contract).

The district court properly granted summary judgment to the Trust on their

intentional interference with contract claim because Kurgan failed to raise a

genuine dispute of material fact as to whether he did not use improper means to

interfere with a business relationship and whether the Trust did not incur damages

as a result. See Buckner v. Home Depot U.S.A., Inc., 71 P.3d 150, 152 (Or. App.

2003) (elements of intentional interference with contract).

The district court properly denied Kurgan’s special motion to strike under

Oregon’s anti-SLAPP statute because Kurgan did not make a prima facie case that

his statements were made in the connection with a judicial proceeding. See

Schwern v. Plunkett, 845 F.3d 1241, 1245 (9th Cir. 2017) (analysis under Oregon

3 15-35050 anti-SLAPP statute); see also Or. Rev. Stat. § 31.150(3).

The district court did not clearly err in awarding $26,422 in damages to the

Trust for its intentional interference with contract claim. See Simeonoff v. Hiner,

249 F.3d 883, 893 (9th Cir. 2001) (standard of review); Milgard Tempering, Inc. v.

Selas Corp. of Am., 902 F.2d 703, 710 (9th Cir. 1990) (this court will not disturb

an award of damages unless it is clearly unsupported by the evidence or it shocks

the conscience).

Appeal No. 16-35201

The district court did not abuse its discretion in awarding fees and costs to

the Trust because Kurgan’s failure to respond to discovery requests was not

substantially justified. See Fed. R. Civ. P. 37(a)(5)(A) (district court must require

the party whose conduct necessitated a successful motion to compel to pay

reasonable expenses, including attorney’s fees, unless the party’s nondisclosure

was substantially justified); Patelco Credit Union v. Sahni, 262 F.3d 897, 912-13

(9th Cir. 2001) (standard of review).

We reject as without merit Kurgan’s argument that the district court

deprived him of an opportunity to conduct discovery.

We do not consider allegations raised for the first time on appeal. See

4 15-35050 Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).

AFFIRMED.

5 15-35050