*1 654 05-72434, argues that In Doe No. and fact. id. law See question

ble mixed denying BIA petition discretion Here, abused Doe’s the factual basis reopen motion to and reconsider. While his only review whether undisputed; we reconsid reopen we review motions appropriately BIA determined Abudu, discretion, I.N.S. “changed for abuse of circum- er facts did not constitute U.S. materially a£fect[ed Doe’s] stances which I.N.S., (1988); also Cano-Merida cir- 90 see extraordinary or eligibility asylum lack delay F.3d we relating cumstances the BIA’s decision to review jurisdiction application8 U.S.C. sponte sua reopen proceedings 1158(a)(2)(D); § also C.F.R. 3.2(a). § Ekimian 8 C.F.R. See 208.4(a)(4)(I) examples (listing § .,. I.N.S., materially af- “changed circumstances petition for asy- Accordingly, Doe’s review eligibility

fecting applicant’s lum”); 208.4(a)(5) (listing is dismissed. § exam- No. 05-72434 C.F.R. ... “extraordinary circumstances

ples AND IN PART NO. DENIED to meet the directly failure related to PART; IN NO. 05-72434 DISMISSED deadline”). Here, one-year does record DISMISSED. compel conclusion that Doe has cir- changed extraordinary shown Rawlinson, concurring: Judge, asylum applica- such that his cumstances result. I concur in the notwith- tion should have been considered standing filing. generally late id. for re-

Accordingly, deny petition dismissing of the BIA’s order Doe’s

view asylum.

application for jurisdiction have to review

We also argument that substantial evidence

Doe’s Doe compels finding in the record COR ENTERTAINMENT SLEP-TONE past persecution demonstrated Phoenix Entertain PORATION and future probability that he will suffer clear Partners, LLC, Plaintiffs-Appel BIA erred in persecution, such that lants, withholding denying application his is not “so the evidence

removal. AND KARAOKE WIRED FOR SOUND that no reasonable compelling factfinder SERVICES, LLC; Ernest Z. McCul DJ per fear of requisite could fail to find the lar, Defendants-Appellees. Elias-Zacarias, U.S. at secution.” Indeed, 483-84, record S.Ct. clearly supports the BIA’s and IJ’s deter Appeals, Court of United States Doe failed to establish

minations that Germany or while in persecuted he was likely than not that he that it more December Argued and Submitted persecution subjected to future

would be petition for Germany. deny We Doe’s respect to his in No. 03-74206 with review denying BIA his erred withholding of removal. application *2 Harrington, Harrington

James M. Law, Pineville, P.C., NC, for Plaintiffs-Appel- lants. Attorney, Morey Law,

Lorraine Morey, Phoenix, PLLC, AZ, for Defendants-Ap- pellees.

Before: GRABER and BOULWARE,* Judges, Circuit Judge. District ** MEMORANDUM Slep-Tone Cor- Entertainment poration1 appeals the district court’s dis- prejudice with missal claims and unfair Act, competition Lanham under the grant the district court’s ment to Defendants on Plaintiffs Arizona contract under law.2Re- viewing “de novo the district Corp, summary judgment,” Am. Tower City Diego, of San reverse further proceedings. distinctly

1. not raise Ari- Plaintiff did counterfeiting state law zona opening brief. Those are therefore appeal. Corbin Time Warner Boulware, successor-in-interest, party. The Honorable F. as an additional Richard Judge for the District of Neva- collectively District these as We refer entities da, sitting by designation. "Plaintiff.” ** publi- appropriate This precedent except provid- cation and 2. We affirm the dismissal trademark- ed Ninth Rule 36-3. concurrently per claims in a filed cu- related opinion. appeal, 1. On Phoenix riam has added Partners, LLC, Slep-Tone’s Entertainment Blonder-Tongue Labs., P’ship, v. Univ. 821 ate.” Inc. Entm’t-Advance/Newhouse Found., of Ill. 402 U.S. n.3 (1971). Defen inter the district court’s “We review raised no dants novo.” Flores de pretation *3 Com their answer the Amended to Second Lynch, (9th 898, 905 Cir. 828 F.3d for plaint, which contract claims asserted purpose in a contract is “Our interpreting Instead, first time. of Plain the assertions the parties’ intent. to ascertain and enforce purported tiffs waiver did-not arise until intent, parties’ we look To determine the summary Although judgment stage. the plain meaning of to the words the showing prejudice, the of a of “[i]n absence in of as a the context contract viewed the may ... an affirmative defense be raised Ctr., Callaway, ELM Ret. LP v. whole.” summary judgment,” first for the time at 287, 938, (App. Ariz. McCarthy, Camarillo (citation 2010) quotation and internal 1993), foreclosing omitted). marks only claim after trademark had correctly The district held Plaintiff, prejudiced which been dismissed parties’ of settle- earlier paragraph opportunity litigate no had to this issue a agreement provides Plaintiff with both while remained available. remedies in of default. choice the event Defendants’ Arguments only asserted that Plaintiff option, (y) “may, Plaintiff at accelerate in it, original trademark declaring im- any debts to complaint point. opera- are beside the mediately and Complaint tive Second asserts of Amended an action for breach side-by-side infringe- for trademark ment and contract. These in above an and institute original filing. Fed. back to the relate infringement, action trademark such 15(c). P. “the explained, R. Civ. As wé have complaint general rule that an after amended DANT undertaken both before and supersedes complaint original of this the effective date Lacey it legal effect.” renders without effect, argue, in su Defendants Maricopa County, ing trademark 2012) (en banc). its claim for breach earlier summary judgment Cont’l Life When motion Am. Co., Inc., decided, al- operative complaint Ins. Co. v. Constr. Ranier (“Waiver (1980) claims, Ariz. leged 607 P.2d both contract trademark voluntary, meaning that, stage, intentional express, is either at that Plaintiff had relinquishment impossible of a known or such It to right pursued theories. was whether, contract, of such conduct as warrants an inference determine relinquishment.”). an Waiver Plaintiff had an action” for “institute[d] intentional And, the expense constitutes one of'the other. responsive pleadings. be claims now have must raised because trademark 8(c); dismissed, Ariz. R. no possibility See Fed. R. Civ. see also been of double 8(c). pleading recovery purpose Civ. P. “The the district We reverse exists. give opposing judgment to notice of the to De- party summary to ar claim for defense] chance fendants [affirmative can, why if contract and gue, imposition of an consideration [it] inappropri- that claim on be its merits. [affirmative defense] from part; AFFIRMED dissent REVERSED memorandum part parties and REMANDED. shall the extent it holds the contrary, appeal. their own costs on bear Judge, concurring part: part dissenting

Although generally allows a Arizona law trial,

plaintiff elect Tempe Corp. Funding Bldg. Ariz. Office

Servs., Inc., 807 P.2d complaint is an Amarjit NIJJAR, Singh Petitioner, *4 pro if a so election vides, Gin, Wingate In Win- LYNCH, Attorney E. Loretta

gate, provided upon the lease ten that General, Respondent. default, ant’s the landlord could “wait the end of the lease term and any owing to be recover amounts found of Appeals, Court time,” or “elect to terminate lease damages upon and recover his termi * January 17, Submitted nation.” 714 P.2d at 463. court found by seeking judg the “complaint, charges, past for all ment rents and future, Wingate to terminate the elected Id.

lease.” agree- 15 of

Paragraph the settlement provides in the event of breach may, option, at its accel- (y)

“SLEP-TONE it, declaring any

erate debts

immediately action for and institute an 13 above

action for trademark undertaken before and

DANT effective date of this court, hold,

I as did the district suing infringement, Slep- I

Tone voided

would therefore affirm the on Slep-Tone’s

ment Wired for Sound respectfully contract claim and 34(a)(2). panel unanimously App. See Fed. R. concludes this case is argument. oral suitable decision without