NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDRA L. FERGUSON, Esquire, No. 18-36043
Plaintiff-counter- D.C. No. 2:17-cv-01685-RSM
defendant-Appellant,
v. MEMORANDUM*
BRIAN J WAID, and the marital community
thereof,
Defendant-counter-claimant-
Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted December 13, 2019
Seattle, Washington
Before: GOULD and BERZON, Circuit Judges, and BENITEZ,** District Judge.
1. Sandra Ferguson appeals from the district court’s order dismissing her
§ 1983 claims against Brian Waid under Fed. R. Civ. P. 12(c). Ferguson fails to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
state a § 1983 claim because Waid’s communications about Ferguson with the
Washington State Bar Association are immunized under the Noerr-Pennington
doctrine, and Ferguson’s Complaint does not plausibly allege application of the
sham exception. Empress LLC v. City & Cty. of San Francisco, 419 F.3d 1052,
1056-57 (9th Cir. 2005). Moreover, Ferguson’s Complaint does not plausibly
allege “state action,” as required to plead a § 1983 claim. See Franklin v. Fox, 312
F.3d 423, 444 (9th Cir. 2002) (“A civil rights plaintiff suing a private individual
under § 1983 must demonstrate that the private individual acted under color of
state law[.]”).
2. Ferguson appeals from the district court’s order imposing Rule 11
sanctions for her filing of a frivolous § 1983 claim against Waid. Ferguson did not
file a timely opposition to Waid’s motion for sanctions before the district court;
this Court declines to invoke its discretion to consider Ferguson’s arguments raised
for the first time on appeal. Cold Mountain v. Garber, 375 F.3d 884, 891 (9th Cir.
2004). Further, even considering the merits, the district court did not err in finding
Ferguson’s § 1983 claim to be frivolous.
3. Ferguson appeals from the district court’s order holding her Complaint
violated Washington’s Anti-SLAPP statute, RCW 4.24.510, and awarding $10,000
in statutory damages to Waid. Because a state’s Anti-SLAPP statute does not
apply to federal claims for relief, we reverse the district court’s finding on that
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claim, and strike the associated $10,000 award. Hilton v. Hallmark Cards, 599
F.3d 894, 901 (9th Cir. 2010) (an “anti-SLAPP statute does not apply to federal
law causes of action. . . . [A] federal court can only entertain anti-SLAPP special
motions to strike in connection with state law claims”); Martinez v. California, 444
U.S. 282, 284 n.8 (1980) (“Conduct by persons acting under color of state law
which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law”).
4. Ferguson appeals from the district court’s two orders denying summary
judgment. First, Ferguson cannot challenge the district court’s findings of fact on
appeal because she did not furnish the trial transcript. See Syncom Capital Corp. v.
Wade, 924 F.2d 167, 169 (9th Cir. 1991) (“Without a trial transcript, the majority
of [Appellant]’s contentions are unreviewable. We also agree that [Appellant]’s
failure in this respect justifies summary affirmance of the district court’s decision,
pursuant to Fed. R. App. P. 10(b)(2).”).
Second, as to the alleged errors Ferguson raises, her appeal of the orders
denying summary judgment in her favor on the defamation and harassment claims
is foreclosed by Ortiz v. Jordan, 562 U.S. 180 (2011), because a district court’s
orders denying summary judgment are not reviewable after a trial on the merits.
Here, following a trial on the merits, the district court made findings of fact and
conclusions of law about Waid’s defamation and civil harassment counterclaims.
Ferguson relies upon a pre-Ortiz exception, which permits review of “purely legal
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issues” after a trial on the merits, but this Court has not yet decided whether that
exception survives Ortiz. Moreover, even if it did, the exception would not apply
here where Ferguson does not raise “purely legal issues capable of resolution with
reference only to undisputed facts.” Williams v. Gaye, 895 F.3d 1106, 1122 (9th
Cir. 2018) (internal quotations omitted); cf. Banuelos v. Constr. Laborers’ Trust
Funds, 382 F.3d 897, 903 (9th Cir. 2004) (in ERISA case, examining purely legal
issue of whether district court “erred as a matter of law when it concluded it could
hear evidence outside the administrative record”).
Finally, the district court essentially granted partial summary judgment for
Waid when it “conclude[d] as a matter of law that Ms. Ferguson made statements
of fact, not opinion, when she stated that Mr. Waid engaged in fraudulent and
criminal activity,” and ordered that Ferguson was “precluded from raising this
defense at trial.” That conclusion was not in error. See Milkovich v. Lorain
Journal Co., 497 U.S. 1, 18-19 (1990) (a statement of opinion that reasonably
implies a false and defamatory statement of fact is actionable). “Even if the
speaker states the facts upon which he bases his opinion, if those facts are either
incorrect or incomplete, or if his assessment of them is erroneous, the statement
may still imply a false assertion of fact.” Id.
5. Ferguson appeals from the district court’s post-trial order, entering an
injunction “to protect Mr. Waid from further harassment.” The injunction is
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overbroad at section (a), which prohibits Ferguson generally “from contacting past
or present clients of Brian J. Waid, either in person, via telephone, or by electronic
communications.” Id. That prohibition is not supported by the district court’s
findings of fact or conclusions of law regarding defamation, as its effect is to
preclude Ferguson from having any communications with Waid’s clients,
including about topics unrelated to Waid or this lawsuit. Accordingly, we reverse
and remand with instructions to revise section (a) to add the underlined language:
“Sandra Ferguson is enjoined from repeating the same or effectively identical
statements found to be defamatory in this case to past or present clients of Brian J.
Waid, either in person, via telephone, or by electronic communications.” With that
modification, the injunction will be “tailored to eliminate only the specific harm
alleged.” E & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1297 (9th Cir.
1992). As to the remaining sections of the injunction, we affirm.
6. Both parties’ requests for attorneys’ fees are DENIED as premature and
as not supported by proper documentation. See Fed. R. App. P. 39-1.1
1
The pro se parties’ motions for judicial notice, Docket Entry Nos. 38, 53,
60, 67, 69, 97, and 110, are granted.
The Court construes Ferguson’s motion, Docket Entry No. 116, to strike a
duplicate filing as seeking to strike Docket Entry No. 115. The motion is granted,
and the Clerk shall strike the motion submitted at Docket Entry No. 115.
The Court construes Ferguson’s motion to supplement the record, Docket
Entry No. 111, as a request for judicial notice made pursuant to Fed. R. Evid. 201,
and the motion is granted.
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AFFIRMED in part, REVERSED in part, and REMANDED.
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