FILED
NOT FOR PUBLICATION MAY 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ZL TECHNOLOGIES, INC., No. 10-16061
Plaintiff - Appellant, D.C. No. 5:09-CV-02393-JF
v.
MEMORANDUM *
GARTNER GROUP, INC. and CAROL
DICENZO,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Submitted May 10, 2011 **
San Francisco, California
Before: D.W. NELSON and W. FLETCHER, Circuit Judges, and DUFFY, District
Judge.***
*
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 Kevin Thomas Duffy, District Judge for the U.S.
District Court for Southern New York, New York, sitting by designation.
ZL Technologies appeals a district court order granting Gartner Group, Inc.
(“Gartner”) and Carolyn DiCenzo’s (“DiCenzo”) motion to dismiss its defamation
and trade libel claims pursuant to Fed. R. Civ. P. 12(b)(6). We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
We review a district court’s dismissal of an action for failure to state a claim
de novo and its denial of leave to amend for abuse of discretion. Public Utility
Dist. No. 1 v. IDACORP Inc., 379 F.3d 641, 646 (9th Cir. 2004).
The threshold question in this case is “whether a reasonable factfinder could
conclude that the contested statement implies an assertion of objective fact.”
Gardner v. Martino, 563 F.3d 981, 987 (9th Cir. 2009) (quoting Unelko Corp. v.
Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990)). “If the answer is no, the claim is
foreclosed by the First Amendment.” Partington v. Bugliosi, 56 F.3d 1147, 1153
(9th Cir. 1995). We use a three-part test to resolve this question: “(1) whether the
general tenor of the entire work negates the impression that the defendant was
asserting an objective fact, (2) whether the defendant used figurative or hyperbolic
language that negates the impression, and (3) whether the statement in question is
susceptible of being proved true or false.” Id. (citation omitted). Judged by this
standard, ZL Technologies’ classification as a “Niche Player” in Gartner’s Magic
Quadrant Reports does not imply a factual assertion that ZL Technologies’
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products are inferior to its competitors’ products in terms of objective
performance, and a reasonable factfinder could not conclude otherwise.
The general tenor of Gartner’s reports clearly negates the impression that a
company’s position on the Magic Quadrant asserts an objective fact, much less an
objective fact about the quality of that company’s products. Each report begins
with the disclaimer that “[t]he opinions expressed herein are subject to change
without notice.” Gartner also makes it clear that “[p]lacement on the Magic
Quadrant each year is based on Gartner’s view of the vendor’s performance against
the criteria listed.” The axes of the Magic Quadrant are abstract qualities selected
by Gartner: the “ability to execute” and “completeness of vision.” These qualities
are broken down into fifteen different categories, almost all of which are
qualitative in nature. Only one out of the fifteen categories directly concerns a
company’s “Product/Service,” and there is no indication that Gartner’s assessment
is based upon product testing. Rather, Gartner’s views are shaped by conversations
with “customers” and “vendor-supplied references.” This subjective and
qualitative approach is not given to the assertion of objective facts, and a
company’s placement on the Magic Quadrant is not susceptible of being proved
true or false. Cf. Unelko, 912 F.2d at 1053-58. The district court therefore did not
err in granting defendants’ motion to dismiss.
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ZL Technologies has waived any objection to the district court’s ruling with
respect to DiCenzo’s statement that its products were “the same” as those of
Symantec. See Indep. Towers of Washington v. Washington, 350 F.3d 925, 929
(9th Cir. 2003). Even if the district court’s ruling had been properly appealed, ZL
Technologies’ claims are without merit.
Finally, the district court did not abuse its discretion by denying leave to
amend. See Partington, 56 F.3d at 1162.
AFFIRMED.
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