FILED
NOT FOR PUBLICATION OCT 23 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTTRADE, INC., No. 12-35711
Plaintiff, D.C. No. 1:11-cv-00003-RFC
v.
MEMORANDUM*
CHRIS GIBBONS; ARNOLD FALLER;
PATRICIA FALLER; KIMBERLY
CHABOT,
Defendants-cross-claimants -
Appellees,
SHANE M. LEFEBER,
Defendant-counter-claimant -
Appellee,
V.
KRISTINE DAVENPORT,
Defendant-third-party-
plaintiff - Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
SCOTTRADE, INC., No. 12-35746
Plaintiff - Appellee, D.C. No. 1:11-cv-00003-RFC
v.
PATRICIA FALLER,
Defendant-cross-claimant -
Appellee,
SHANE M. LEFEBER,
Defendant-counter-claimant -
Appellant,
V.
KRISTINE DAVENPORT,
Defendant-third-party-
plaintiff - Appellee,
V.
ARNOLD FALLER,
Third-party-defendant -
Appellee.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Senior District Judge, Presiding
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Submitted October 10, 2014**
Portland, Oregon
Before: GOULD, CHRISTEN, and NGUYEN, Circuit Judges.
On September 15, 2010, James LeFeber (“LeFeber”) died, leaving the
contents of his Scottrade brokerage account to five of his friends: Shane Lefeber
(“Shane”), Patricia Faller (“Faller”), Kristine Davenport (“Davenport”),
Christopher Gibbons and Kimberly Chabot. However, one of those
beneficiaries—Davenport—sought to claim all of LeFeber’s estate and brokerage
account, based on an unrecorded oral contract that she allegedly made with
LeFeber in 2007. She filed suit in Montana state court.
Faced with competing claims over LeFeber’s account, Plaintiff-Appellee
Scottrade, Inc. (“Scottrade”) filed an interpleader action in the United States
District Court for the District of Montana. A welter of claims, crossclaims and
counter-crossclaims followed. Seeking the entire account, Davenport alleged a
conspiracy of the other beneficiaries to interfere with the purported 2007 oral
contract. Her causes of action included undue influence, duress, fraud, and breach
of fiduciary duty as well as others, like interference with expectancy, not
recognized by Montana law. She also claimed that the conspirators, after inducing
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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LeFeber to break his contract, had murdered him by giving an overdose of the pain
medications he took for terminal esophageal cancer, and had destroyed evidence of
their crimes by illegally cremating LeFeber’s body. Davenport also filed many
procedural motions which 1) challenged the court’s jurisdiction over the
interpleader action and its dismissal of Scottrade; 2) tried to transfer venue to
another Division of the District of Montana; and 3) tried to disqualify the presiding
judge for bias. She also haled Faller’s husband, Arnold Faller—who is not a
beneficiary of LeFeber’s brokerage account—into court to defend himself against
her claims of conspiracy. The district court denied all of these motions, dismissed
both Scottrade and Arnold Faller with prejudice, and eventually granted summary
judgment against Davenport and awarded the other parties attorney fees and costs.
On appeal, Davenport makes thirty-nine claims of error, renewing the
arguments that she had presented in the district court and also challenging the
district court’s award of attorney fees and costs. On cross-appeal, Shane appeals
the district court’s denial of prejudgment interest to the prevailing beneficiaries.
We have jurisdiction under 28 U.S.C. § 1291. Regarding the award of attorney
fees and costs, we vacate the award and remand to the district court with
instructions to allow Davenport to file any objections as to the amount of the award
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only. On the remainder of Davenport’s claims, and on Shane’s claim, we affirm
the district court.
Davenport’s claims regarding the dismissal of Scottrade and Arnold Faller
from the litigation do not persuade us. Scottrade’s decision to initiate an
interpleader action to resolve the competing claims to the brokerage account was
appropriate. The district court’s jurisdiction was proper. See Mack v.
Kuckenmeister, 619 F.3d 1010, 1024 (9th Cir. 2010). Also proper was its
dismissal of Scottrade as a neutral stakeholder. See Gen. Atomic Co. v. Duke
Power Co., 553 F.2d 53, 56 (10th Cir. 1977). Davenport’s claim against Arnold
Faller rested on merely a series of conclusory statements, lacking in the factual
matter necessary to state a plausible claim, and was properly dismissed. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Similarly, the district court did not
abuse its discretion in denying Davenport’s numerous and substantively baseless
procedural motions.
We also conclude that the district court properly awarded summary
judgment to the other parties on Davenport’s claims. While a fact-intensive case is
not appropriate for summary judgment when there are genuine factual issues,
Davenport did not present evidence of any such issues necessary to defeat a motion
for summary judgment. We have previously held that where the “factual context”
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of a case “makes the non-moving party’s claim implausible, that party must come
forward with more persuasive evidence than would otherwise be necessary” to
defeat summary judgment. Cal. Architectural Bldg. Prods., Inc. v. Franciscan
Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Davenport’s serious
claims—that the other beneficiaries used undue influence to negate an oral
agreement for her to get all of LeFeber’s assets, and indeed killed the decedent to
gain their objectives—required more than the assertions of an interested party to
proceed, especially since it is undisputed that the alleged oral agreement was never
recorded, witnessed or reduced to a signed writing. Given this factual context,
Davenport had to produce real evidence of a dispute; instead, her evidence consists
of speculative assertions in uncorroborated, self-serving affidavits.
Turning to the district court’s award of attorney fees and costs, we affirm the
award of $6,142.53 in attorney fees to Scottrade. The district court properly
awarded these fees pursuant to federal interpleader law. See Michelman v. Lincoln
Nat’l Life Ins. Co., 685 F.3d 887, 898 (9th Cir. 2012). Davenport was afforded an
opportunity to object to the amount of fees requested by Scottrade in her response
to Scottrade’s motion to dismiss, and the district court properly concluded that the
amount requested by Scottrade was reasonable.
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Our conclusion is different, however, with respect to the fees awarded to
Arnold Faller, Patricia Faller, and Shane. Although the district court properly
recognized that it had the authority to award these fees, Davenport should have
explicitly been given the opportunity to object to the amount of fees requested by
the parties. Therefore, we vacate these awards and remand with instructions to
allow Davenport to file objections as to the award amounts only.
Finally, on the issue of prejudgment interest raised by Shane’s cross-appeal,
we conclude that the district court did not abuse its discretion by denying
prejudgment interest. The relevant Montana law requires an underlying monetary
obligation between parties before an award of prejudgment interest is proper.
Mont. Petroleum Tank Release Comp. Bd. v. Crumleys, Inc., 174 P.3d 948, 965
(Mont. 2008). No such obligation exists here.
AFFIRMED in part, VACATED in part and REMANDED with
instructions.
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