*1 (“Use that H & L clearly shown took incon- of certification rests the sound positions court.”). sistent with respect to its knowl- discretion of this did not Clinton edge of Clinton’s assets. H & L process never raise his due argument before the asserted, suggests, case, as Clinton that it district In any has court. portion this “no way knowing idea or appellate what Mr. his brief merely repeats his con- Clinton’s assets” are. H & L’s statement tention that the district court abused its that it knowledge lacks by appointing information to discretion a receiver. We identify “other assets” and already rejected “continues to have argument. this search for possible assets and avenues of
collection” is consistent with its assertion CONCLUSION “proceeded it against known assets The district court’s order appointing but continues to search for ‘other’ assets.” authorizing receiver and copy- the sale of rights is AFFIRMED.
E. Clinton Failed to Raise His Pre- emption, Doctrine, Erie and Due Arguments
Process District
Court. appeal,
On Clinton’s brief suggests a
preemption argument, an argument based
on
doctrine,
the Eñe
alleged
an
due
process
observed,
violation. As we have
UNITED
MAINTENANCE,
NATIONAL
an appellate court generally “will not con-
INC., a
corporation,
Nevada
arguments
sider
not first raised before the
Plaintiff-Appellant,
district court unless there are exceptional
Gieg,
circumstances.”
these but case we find them Defendant-Appellee. to be without merit. No. 12-56809. Clinton claimed oral argument before United States Court our of Appeals, court that he raised a preemption ar- Ninth Circuit. gument opposition to H & L’s motion for sale of the copyrights. The brief to Argued and Submitted April 2014. which Clinton only refers general makes a Filed Aug. reference to the U.S. Constitution’s Su- premacy Clause. Clinton conceded аt oral
argument that he did not raise his Eñe
argument in the district court. On appeal,
this part of his brief urges our court to
certify to the Washington supreme state
court the question whether a copyright is
subject to satisfy execution to a judgment,
but he cites no authority implied for the
contention that we obligated are to certify question. this Complaint re
McLinn, (9th Cir.1984) 744 F.2d *2 (argued),
Leonard J. Feldman Jason T. Eidson, Morgan, and J. Will Rives Stoel LLP, Seattle, R. Washington; James Lance, Slania, Jacob M. P. and Micaela Banach, Kirby Hoge Noonan Lance & LLP, CA, Diego, for Plaintiff-Appel- *3 lant.
Joseph Ergastolo (argued), T. H. John Jr., Schouten, L’Estrange, and Andrew E. CA, Wright & L’Estrange, Diego, San for Defendant-Appellee. Foer, Stutz, Randy
Albert A. M. and Vaheesan, Sandeep American Antitrust In- stitute, D.C., Washington, for Amicus Cu- riae the American Antitrust Institute. Kathleen M. O’Sullivan and Eric D. Mil- ler, LLP, Seattle, WA; Perkins Coie Jac- queline LLP, Young, E. Perkins Coie San Francisco, CA, for Amici Curiae Exhibition Associаtion, Services & Contractors Soci- ety Independent Organizers, Show and International Association of Exhibitions & Events.
Sonya Lannin, D. Winner and H. Cortlin Covington LLP, Francisco, Burling San & CA; Garza, Covington Deborah A. & Bur- LLP, ling D.C., Washington, for Amicus Curiae International Association of Venue Managers, Inc. BRIGHT,*
Before: MYRON H. FARRIS, JEROME and ANDREW D. HURWITZ, Judges. Circuit * Circuit, The Myron Bright, Honorable Eighth sitting by designation. H. Senior Cir- Judge cuit Appeals for the U.S. Court of City gave SDC the Diego San Council The OPINION AND
ORDER market, authority operate, “exclusive ORDER The board of promote and Center.” mayor city by the SDC is chosen 14, 2014, is May filed on Opinion The Diego. Mu- council of San Petition for Appellant’s WITHDRAWN. city including as defines the nicipаl Code MOOT. DENIED AS Rehearing is Panel City wholly owned “Corporations city receives ... such as [SDC].” OPINION year a five annually submits funding and FARRIS, Judge: Circuit Senior rolling budget. Maintenance, a nation- National United license the organizations Companies cleaning ser- trade vendor of show wide period specific the SDC for a Center vices, Diego Convention sued the San general hire to host events. Licensees 1) claims for alleging Corporation, Center *4 to coordinate event-re- decorator services contractual interference with intentional Champion Exposition Ser- services. lated 3) 2) viоlations, and relationship, antitrust Freeman, Experience vices, and Global prospective interference with intentional decorator services for provide Specialists a juryA returned advantage. economic held at the center. majority of events the on of United National favor verdict operates nation- companies of the Each contractual interference with intentional from deco- rent booths Exhibitors wide. not reach a but could relationship claim for other may also contract and rators a re- On on the other claims. verdiсt cleaning. Trade show such as services as a matter judgment motion newed variety a cleaning companies provide SDC, court found the district by law through contracts with cleaning services on all of the center of the convention favor include both These services decorators. company ap- The maintenance claims. cleaning. cleaning and facility booth pealed. a trade is National Maintenance United operates that cleaning company show I has con- UNM throughout country. the statuto- granted has cities California provide Champion tо tracts GES assembly public authority to construct ry cleaning services. trade show nationwide Code halls. Cal. Gov’t or convention since 1989 services provided has UNM may appoint §§ Cities 37500-37506. in the area is of its work Diego. Most use of the facili- manage commission Diego Center. at the San Convention done opera- gained Funds ties. cleaning ser- trade show also offers SDC go to first convention tion of the center convention who use the to decorators vices associated expenses paying the assorted execu- an SDC In the fall center. money any remaining operаtion; with its about Champion and GES approached tive city’s fund. general to the may go then perform hiring personnel SDC them § 37505. Both com- cleaning services. trade show In proposal. declined SDC City panies Council the San Diego cleaning a new instituted July SDC Center the San Convention created mandated policy policy. operations of services manage Corporation provider of would be “exclusive is SDC Center. SDC Diego Convention the San policy staffing.” The cleaning services corporation public benefit nonprofit one pay SDC required that decorators Diеgo. also city of San wholly owned cleaning half of all booth revenue that the and local government immunity. In the per alternative, decorator received as well as a the district $17 court held that wage employees provid- hour for SDC had present UNM failed to sufficient evi- cleaning ed services. UNM continued to dence on specific elements of anti- perform on its contracts with GES claim. Finally, trust the district court dis- using personnel pro- UNM while missed UNM’s claims for interference with cleaning vide the services. The new re- prospective advantage and puni- quirements significantly inсreased the damages tive as well as UNM’s motion for performance costs of for UNM on its con- injunctive timely relief. UNM appealed. Champion tracts with and GES. II 13, 2007,
On November filed a UNM We review de novo a district court’s complaint against alleged SDC. UNM granting order or denying judgment aas contract, claims for interference with inter- matter of law. Byrd Maricopa See prospective ference with economic advan- Cnty. Dep’t, 629 F.3d tage and antitrust violations. The case Sheriffs (9th Cir.2011) (en banc). We review de proceeded to trial. At the end of UNM’s novo whether the district court cоmmitted chief, case-in judg- SDC filed a motion for instructional error in its statements of the ment as matter of law on each of UNM’s law, Cross, Dang v. rejected claims. The district court Cir.2005), as well as the district court’s May 4, 2011, motion. On re- immunity determinations of from antitrust turned a unanimous verdict on UNM’s in- *5 liability, Elec. Grason Co. v. Sacramento tentional interference with contractual re- Dist., 833, (9th Mun. Util. 770 F.2d 835 jury lations claim. The awarded UNM Cir.1985). $668,905. damages of jury The did not reach a verdict on remaining UNM’s III claims. law, Under California the elements SDC then filed a motion for new trial on for the tort of intentional interference with intentional interference with сon- “(1) contractual relations are a valid con tractual relations claim and a renewed mo- tract plaintiff between and a party; third judgment tion for as a matter of law on (2) knowledge contract; defendant’s of this UNM’s other claims. The district court (3) defendant’s intentional designed acts to construed SDC’s motion for new trial as a induce a disruption breach or of the con judgment motion for as a matter of law. (4) relationship; tractual actual breach or granted district court SDC’s motion disruption of the contractual relationship; on each of UNM’s claims. The district (5) resulting damage.” Pac. Gas & court held that UNM could not assert an Co., Elec. Co. v. Bear Stearns & 50 Cal.3d
intentional
interference with contractual
1118,
1,
Cal.Rptr.
587,
791 P.2d
589-90
relationship
against
claim
SDC as SDC
(1990).
had an economic interest in the contracts.
alternative,
In the district court
held
After the
returned its
verdict
that SDC was entitled
a
UNM,
to new trial as the
favor of
the district court
a
issued
district court had previously erred in
judgment
not
as matter of law on the basis
giving legal interpretation
a
of UNM’s con-
that
the tort of intentional interference
with
tracts
the decorators. The district
only applies to parties
any “legiti-
that lаck
court also held that UNM’s antitrust claim mate interest
...
in the underlying con-
was barred based on SDC’s state-action
tract.”
heavily
The district court
relied on
(1994)
(rejecting
this court P.2d
459-63
an at-
prior opinion
a
dictum from
recog
tort
long
liability
to create
under a theo-
tempt
that
“California law has
stated
conspiracy
interfer
for
to the con-
ry
parties
the core
intentional
nized that
an
relationship).
parties
is interference with
ence
torts
tractual
To shield
business
third-party
relationship by a
contract
economic
with an economic interest
in the
that an
relationship,
so
stranger
potential
liability
would create an
from
involvement
a direct interest or
entity with
lacuna
between the
undesirable
the law
for
relationship
usually
is not
liable
in that
contract.
respective domains of tort and
by pursuit
interests.”
harm caused
of its
an
in a
party
A
with
economic interest
Pe
Barge,
Westport
Inc. v.
Tug
Marin
&
could interfere
relationship
contractual
Inc.,
troleum,
Cir.
facing
risk of
tort or con-
without
either
liability.
particularly
This
is
tract
result
2001).
perverse
it is
with some
parties
as
those
Ma
reading of
The district court’s
in a contract
type of economic interest
requirement
rin
to add an additional
Tug
have
incentive
greatest
whom would
intentional
with
tort of
interference
it.
to interfere with
Such a result would
relationship
justified
contractual
hardly
goal
pro-
serve the established
First,
in Ma
plaintiff
reasons.
several
formally
re-
tecting “a
cemented economic
rin
under the
of “intentional
Tug sued
tort
...
lationship
interference
ad
prospective
economic
interference
Pen-
stranger
agreement.”
to the
Della
specifically stated
vantage,” and we
na,
Cal.Rptr.2d
peal
contracting party
agent.”
decisions
same con
“either a
or its
Motorsports
1594,
422,
Powerhouse
Cal.App.4th
clusion. See
172
92 Cal.Rptr.3d
(2009).
Corp.,
Yamаha Motor
221
Grp., Inc. v.
430 n.
suggestion
3
There is no
867,
811,
Cal.App.4th
Cal.Rptr.3d
824-
agent
here that SDC was the
of either
(2013).
Tug
spe
Marin
did not
Champion
Group,
Since
or
In PM
GES.
Inc. v.
Stewart,
cifically address the tort of intentional in
Appeal
the California Court of
contract,
scope
terference with
of that
contracting party
reiterated that a
could
question
tort remains an
in
cir
open
this
not
tortiously
interfering
be
liable for
with
cuit.
contract;
thus,
We “must follow the state intermedi
performance
of its own
appellate
ate
court
by extension,
unless
contracting party
decision[s]
[we]
could
convincing evidence that the state’s
find[ ]
be held liable for interfering
per
with the
likely
supreme court
would not follow it.”
formance of
if
subcontracts
that claim
Sears,
Co.,
Ryman v.
Roebuck &
hinged on the
per
defendant’s failure to
(9th Cir.2007).
points
SDC
to no form on
original
contract.
154 Cal.
convincing
evidence
the California Su App.4th
64 Cal.Rptr.3d
235-36
(2007).
preme
change
long
Court would
its
held
theory
liability
in
this
position
potential
liability
on the
tort
case is not based on
failure
per
SDC’s
Reeves,
strangers
e.g.,
to a contract. See
form on a contract
Champion
or GES.
Cal.Rptr.3d
ment,
Cal.Rptr.2d
1. Also spective advantage," is a case that SDC does id. at 45 Kasparian Cnty. Ange 90, not cite. See v. Los Cal.Rptr.2d a different tort from the "in- оf les, 242, Cal.App.4th Cal.Rptr.2d 38 45 90 tentional interference with contract” at issue (1995). Tug, Like Kasparian only Marin ad here. pro- dressed "intentional interference with 1009 487, tronic, White, 526 F.3d 493 Inc. v. whether examines fourth element The Cir.2008). ar- provided has no or UNM disruption “a has suffered plaintiff jury “would have rights.” why for the gument contractual their of breach prop- had it been 473. After the same verdict Woods, reached Cal.Rptr.3d 28 verdict, court v. (quoting the district Id. Galdamez erly instructed.” returned its jury (9th Cir.2005)) Potter, 1015, be- warranted 1025 new was that a trial held omitted). (internal legally interpreted It has quotation have marks he should cause Champion and of presumption preju- with GES contracts failed to rebut UNM’s jury to determine to allow the order dice. conditions relevant they contained whether affirm the district court’s therefore We and Cham- ability of GES to the precedent instructional er- it committed holding that cleaning hire trade show UNM for pion terms of the interpreting the by ror not rights contractual If UNM’s services. and that this error constituted contract usage policies conditioned on were a new trial. error that warrants prejudicial SDC, change policy deter- then SDC’s rights instead contractual UNM’s mined V con- of the performаnce disrupting UNM’s immunity po receive States for clarification “ jury’s request The tract. ‘nothing liability as tential antitrust importance point indicates this on Act or its of the Sherman language issue. this in Congress history’ suggested ... con a contract with a argues that UNM capacity sovereign tended restrict valid, en may be a still precedent dition their econo regulate the States ” fo argument UNM’s contract. forceable Putney Health v. Phoebe mies .... FTC — claim—the one of the on element 1003, cuses Inc., —, 133 S.Ct. U.S. Sys., the contracts between UNM validity of (2013) Par 1010, (quoting 43 185 L.Ed.2d this law on California the decorators. 350, Brown, 341, 63 S.Ct. 317 U.S. ker v. Compare murky. somewhat topic is (1943)). actors 307, 315 Nonstate 87 L.Ed. 289, 519- Reeves, 95 P.3d at Cal.Rptr.3d fed “immunity from the may also receive (no claim intentional interference “carrying they if laws” are eral antitrust contracts) SCE- employment at—will Id. regulatory program.” out the State’s Court, Cal.App.4th corp Superior at 1010. (1992) (potential Cal.Rptr.2d has articulated Court The Supreme on was conditioned for contract that claim determine non- test whether two-part proposed regulatory approval). immunity: to this are entitled state actors however, instructions, on the focus jury must be “First, challenged restrаint disruption. For element separate affirmatively articulated clearly one per whether to understand second, poli- policy; as state expressed dis disrupted required the was formance by the actively supervised cy must be what contractual court to determine trict Dealers Liquor Retail Cal. State itself.” re This thus possessed. UNM rights Inc., Aluminum, 445 U.S. Ass’n v. Midcal of the con interpretation legal quired L.Ed.2d 233 S.Ct. correctly conclud trial court and the tract omitted). (1980) (internal quotation marks doing case it this erred in ed supervision, of active requirement *8 so. activities however, “to the apply does entities,” “they as error, governmental of local In of instructional cases their pursue of an incentive have less Med- prejudice. of presumption is a there guise imple- own self-interest under the of delegation zoning authority Carolina’s of policies.” Putney, menting state Phoebe city over local to a very billboards as “[t]he at 1011. 133 S.Ct. purpose zoning regulation of is to displace unfettered business freedom in a manner pass In order to the clear-articulation regularly preventing has the effect of test, “anticompetitive dispute the effect” in ” Omni, normal competition.... acts of should be the “foreseeable result of what 373, at U.S. S.Ct. 1344. The (internal “clear quota the State authorized.” Id. requires articulation” test thus omitted). spe- both a It necessary, tion marks is not delegation authority cific of however, by the state legislature for a state to “ex and some indication that the state pressly state in a statute or has legislative its “affirmatively contemplated history legislature displace- that the for the intends the delegated competition.” action to ment of anticompetitive Putney, have Phoebe City effects.” Town Hallie v. at Eau S.Ct. 1006. The indicatiоn must be more of of Claire, 34, 43, 471 U.S. 105 S.Ct. 85 than neutrality mere but need not rise to (1985). L.Ed.2d We review each chal explicit the level of authorization. See id. lenged anticompetitive act to determine at 1007.
whether it was the result foreseeable of
what the state authorized. Phoebe Put
delegation
California’s
authority
of
1012;
ney,
City
133 S.Ct. at
Columbia v.
satisfies both of these elements with rela
of
Adver., Inc.,
Omni Outdoor
499 U.S.
tion to SDC’s decision to
cleaning
hire
111 S.Ct.
was
evidence that
satisfied when
expressly
Wisconsin
al
legislature
lowed
California
contemplated
cities to limit the municipal provi
sion
sewage
the Convention
neighboring
services to
un
Center need not hire
incorporated
outside contractors to
consequently gave
building.
areas and
clean its
those
authority
legislature’s grant
cities the
The California
pro
make the
of statu-
vision
sewage
tory
contingent
authority
services
on
stated that funds from the
annexation of
unincorporated
convention
areas.
center would be used first
Hallie,
pay
U.S. at
private price-fixing cases where from other guishes SDC “purely paro- may that it seek danger actors, entrusted with groups private expense interests at the public chial authority prоfes over a regulatory state goals” state is satisfactori- overriding more further sion, taken actions to may have test. by the clear-articulation ly addressed e.g., N.C. interests. See private their own Id. FTC, Bd. Dental Exam’rs State active argues supervision that the UNM — (4th Cir.2013), granted, cert. F.3d applied should be to SDC’s requirement U.S. —, 188 L.Ed.2d 134 S.Ct. heavily emphasizes actions. UNM (2014) (need supervision the active to fulfill corporation public, non-profit is a association, pri a state dental test where municipality. Diego’s rather than a dentists, prevented marily composed of however, code, city defines the municipal whitening offering teeth from non-dentists case, including In a similar itself as SDC. services). corporation in- found that a charitable we holding court’s affirm the district We county board of health corporated by immunity possessed state action that SDC exclusive ambulance services provided Thus, it’s claim. antitrust county served as an instrument for the the district court’s unnecessary to address municipality. Ambulance Serv. *10 on the holding comfortably alternative merits of the UNM’s antitrust claims also ground claim. rests on another antitrust identified judge: reasonably district No could engaged monopoli- find SDC either VI attеmpt monopolize by zation or an court dismissed The district UNM’s mandating employees its own clean its claim pro- for intentional interference with Prods., building. See Computer Cal. Inc. spective advantage. This tort v. Int’l Bus. Corp., Machs. 613 F.2d requires “that UNM establish [SDC’s] (9th Cir.1979) (“[A] directed verdict is wrongful by interference was some meas- case, proper, even in an antitrust when beyond ure the fact of the interference support ‘there is no substantial evidence to Penna, Cal.Rptr.2d itself.” Della (quoting Valley the claim.’” Santa Clara 751(internal quotation 902 P.2d at marks Co., Distrib. Co. v. Pabst Brewing 556 F.2d omitted). UNM’s assertion of independent (9th Cir.1977))). 942, 945 n. 1 wrongfulness is based on the antitrust To succeed on its monopo Sherman Act claims. That claim’s failure dooms this claims, lization UNM had the burden of claim. proving that possessed SDC monopoly appeals UNM the district court’s order power a specific product over in a specific denying permanent injunctive it relief. No geographic 2;§ market. 15 U.S.C. Allied permanent injunction should issue as we Orthopedic Appliances Inc. Tyco Health hold that a trial new is warranted on LP, Grp. Care 592 F.3d UNM’s claim for intentional interference Cir.2010). The district court concluded with contractual relationship. was, that the relevant downstream market best, trade show cleaning services for appeals UNM also from the dis meeting spaces exhibition and in the San trict any court’s order that excluded liabili Diego Despite area. the testimony of ty for SDC from punitive damages. expert, no reasonable finder of fact California, a public entity is not liable for could conclude that the relevant geograph punitive damages. § Cal. Gov’t Code ic for cleaning market services consisted public entity SDC is a wholly as it is a only of the San Convention Center. subsidiary owned and instrumentality of beggars It rеason to define the relevant San Diego governmental formed for pur single market as a customer who decides poses and governmental vested with pow to use employees perform its own rou ers. Cal. Gov’t Code 811.2. Under Cali services, tine cleaning rather than hire law, fornia it cannot be liable for punitive others do so. See Grp. Brooke Ltd. v. damages. Brown & Williamson Corp., Tobacco 209, 242, U.S. judgment of the 113 S.Ct. 125 L.Ed.2d district court is (1993) (“Expert testimony AFFIRMED IN is useful as PART AND RE- guide facts, interpreting it market but VERSED IN PART. Each party shall them”). is not a substitute for UNM em bear its own appeal. costs on ployees perform tyрical cleaning ser —who vices, vacuuming such as wiping down by Judge Concurrence HURWITZ. plainly exhibition could clean oth booths— HURWITZ, Judge, Circuit concurring: meeting spaces er and convention facilities I concur in Judge thorough opin- Farris’ Diego. See Todd v. Exxon Corp., ion. I (2d write separately only Cir.2001) (Sotoma to emphasize J.) (“A that the judgment as a matter of yor, law as to greater availability of substi- quantum a smaller buyers indicates tute buyers part of on the power
market
question”). the clean only 43% of represents for convention market
ing services Diego area. in the San facilities
meeting *11 mo to establish actual enough
That City Sportservice, See Twin
nopolization. Co., 512 F.2d Finley & Charles O. v.
Inc. Cir.1975). (9th Although
1264, suffice connection might share
market claim, attempted monopolization an Co., 51 Atl. Rebel Oil Co. v.
see Richfield (9th Cir.1995), such 1421, 1438
F.3d or anticom- requires “predatory also
claim Homes, conduct,” Supermarket
petitive Valley Bd. v. San Fernando Inc.
Realtors, Cir.
1986). no correctly held that The district conclude could finder fact
rational without anticompetitively and acted by using purpose business
legitimate building. clean its own employees
own III, II; I; Doe John Doe John DOE
John proposed
individually on behalf Exchange, members; Global
class
Plaintiffs-Appellants, INC.; USA, Daniels Archer
NESTLE Cargill Incorpo- Company;
Midland Cocoa, Cargill Company; Defen-
rated
dants-Appellees. 10-56739.
No. Appeals, Court
United States Circuit.
Ninth Dec.
Argued Submitted 4, 2014. Sept.
Filed