NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 05 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHRISTIE BOWERS, No. 10-35975
Plaintiff - Appellant, D.C. No. 2:08-cv-01768-RSM
v.
MEMORANDUM*
ROBIN KLETKE and ROBIN COHEN,
husband and wife and the marital
community composed thereof,
Defendants - Appellees.
CHRISTIE BOWERS, No. 10-36030
Plaintiff - Appellee, D.C. No. 2:08-cv-01768-RSM
v.
ROBIN KLETKE and ROBIN COHEN,
husband and wife and the marital
community composed thereof,
Defendants - Appellants.
Appeal from the United States District Court
for the Western District of Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted July 13, 2011
Seattle, Washington
Before: CLIFTON and N.R. SMITH, Circuit Judges, and KORMAN, Senior
District Judge.**
Christie Bowers appeals the district court’s grant of summary judgment for
defendants and the district court’s partial denial of her motion for leave to amend
her complaint. We reverse with respect to the former and affirm on the latter.
Defendants cross-appeal, asserting that the district judge abused his
discretion in refusing to sanction Bowers for delays by dismissing her case. We
affirm.
“Summary judgment is appropriate here only if no reasonable juror, viewing
the evidence in the light most favorable to [Bowers] could find for [Bowers] by a
preponderance of the evidence.” Canada v. Blain’s Helicopters, Inc., 831 F.2d 920,
922 (9th Cir. 1987). Bowers presented evidence that defendants logged in to her
email account on numerous occasions, sometimes for several hours at a time.
Based on that evidence, it would not be unreasonable for a juror to conclude either
(1) that such viewing by defendants necessarily entailed “recording” by the
**
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation..
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computer used by defendants, or (2) that defendants, in accessing Bowers’ email
account numerous times for extended periods of time, printed, saved, or otherwise
recorded some or all of her emails. There was, therefore, a genuine issue of
material fact and summary judgment should not have been granted to the
defendants.
A district court’s denial of leave to amend a complaint under Federal Rule of
Civil Procedure 15 is reviewed for abuse of discretion. AmerisourceBergen Corp.
v. Dialysist West, Inc., 465 F.3d 946, 949 (9th Cir. 2006). “Unless this court has a
definite and firm conviction that the district court committed a clear error of
judgment, it will not disturb the district court’s decision.” California Architectural
Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1472 (9th Cir.
1987). It was not an abuse of discretion or an error of judgment for the district
court to find that Bowers’ delay of 18 months in seeking leave to amend was
unreasonable. See Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 799 (9th Cir. 1991)
(holding that an eight-month delay was unreasonable). Likewise, the district
judge’s conclusion that defendants would be prejudiced by Bowers’ unreasonable
delay and by the need for additional discovery and expert research relating to her
new claim was not error. Prejudice may be presumed from unreasonable delay. In
re PPA Products Liab. Litig., 450 F.3d 1217, 1227-28 (9th Cir. 2006). Bowers’
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assertion that additional discovery and expert research could have been avoided
through judicial notice fails to overcome the district court’s contrary conclusion,
because grants of judicial notice are a matter of judicial discretion. See United
States v. Chapel, 41 F.3d 1338, 1342 (9th Cir. 1994).
“The sanction of dismissal should be imposed only in extreme circumstances
. . . [where] deceptive conduct is willful, in bad faith, or relates to the matters in
controversy in such a way as to interfere with the rightful decision of the case.”
United States v. Nat. Med. Enters., Inc., 792 F.2d 906, 912 (9th Cir. 1986).
Defendants have not pointed to any conduct on Bowers’ part that clearly satisfied
that standard. The district court did not abuse its discretion in refusing to dismiss
Bowers’ case without a showing of deceptive conduct.
Because in the present posture of the case, only a state law claim remains,
the district court may choose to reconsider whether it should exercise supplemental
jurisdiction under 28 U.S.C. § 1367.
AFFIRMED in part and REVERSED in part; REMANDED.
Each party shall bear its own costs.
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