NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 11 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHARON R. HAMMER and JAMES R. No. 15-35687 DONOVAL, husband and wife, D.C. No. Plaintiffs-Appellants, 1:13-cv-00211-EJL-REB

v.

MEMORANDUM*

CITY OF SUN VALLEY; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

Argued and Submitted July 14, 2017 Portland, Oregon

Before: WATFORD and OWENS, Circuit Judges, and NAVARRO,** Chief District Judge.

1. The district court properly dismissed the majority of Sharon Hammer’s

(“Hammer”) claims in a Federal Rule of Civil Procedure 12(c) Order because

Hammer executed a contractual release of these claims in exchange for a severance

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gloria M. Navarro, Chief United States District Judge for the District of Nevada, sitting by designation. payment. Idaho law holds that when a contract is unambiguous, “the meaning of

the contract and intent of the parties must be determined from the plain meaning of

the contract’s own words.” City of Idaho Falls v. Home Indem. Co., 888 P.2d 383,

386 (Idaho 1995). We conclude that the supplemental release that Hammer and

her attorney-husband James Donoval (“Donoval”) drafted and provided to the City

of Sun Valley (the “City”) was unambiguous and therefore waived “any and all

claims for damages arising from a termination without cause” as stated in her

original employment agreement.

2. The district court did not abuse its discretion by failing to allow Hammer

to convert the 12(c) motion to a summary judgment motion. In the 12(c) motion,

Appellees sought judgment on the pleadings arising from Hammer waiving her

claims pursuant to the supplemental release. In Idaho, if the contract’s terms are

unambiguous, then the determination of the contract’s meaning and legal effect are

questions of law appropriately reviewable in a 12(c) motion. See Wylie v. State,

Idaho Transp. Bd., 253 P.3d 700, 706 (Idaho 2011).

Because we conclude that the terms of the supplemental release were

unambiguous, rendering the interpretation of the contract a matter of law, the

district court did not abuse its discretion in denying Hammer’s motion to convert

the 12(c) motion to a summary judgment motion.

3. We reverse the dismissal of Hammer’s unconstitutional bias claim, the

2 15-35687 dismissal of the claims against Nils Ribi and DeWayne Briscoe in their individual

capacity, and the dismissal of Donoval’s claim. We reverse to clarify the grounds

for the district court’s dismissal because we are unable to determine the reasoning

as to why these claims were dismissed.

4. We reverse and remand the dismissal of Hammer’s liberty interest,

stigma plus claim. This Circuit has two differing tests for a liberty interest, stigma

plus claim: the first is identified in Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988)

(the “Gebbie test”), and the second in Campanelli v. Bockrath, 100 F.3d 1476 (9th

Cir. 1996) (the “Campanelli test”). The Gebbie test is less exacting than the

Campanelli test, as Campanelli requires the plaintiff to plead and prove that the

statements at issue were substantially false.

The district court conflated the Gebbie and Campanelli tests, granting

summary judgment based on unclear doctrine. Moreover, the district court

ultimately determined that the statements at issue were substantially false, although

the falsity of what was promulgated about Hammer remained a genuine issue of

material fact. As such, because the district court improperly granted summary

judgment on Hammer’s liberty interest, stigma plus claim, we reverse and remand.

5. The district court did not abuse its discretion in failing to allow Hammer

to amend her complaint. “Denial of leave to amend is not an abuse of discretion

where the district court could reasonably conclude that further amendment would

3 15-35687 be futile.” Sylvia Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1196 (9th

Cir. 2013) (citing Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995)).

The district court in this case reasonably concluded that further amendment would

be futile based on Hammer’s waiver of her claims, and we therefore affirm.

6. We reverse the district court’s costs entered against Hammer and

Donoval. A district court’s awarding of costs does not constitute an abuse of

discretion unless it is “based on an inaccurate view of the law or a clearly

erroneous finding of fact.” See Corder v. Gates, 947 F.2d 374, 377 (9th Cir. 1991).

Because we are reversing and remanding some of Hammer’s claims, we vacate the

entry of costs against Hammer and Donoval.

To conclude, we affirm the district court’s grant of the 12(c) motion; the

denial of Hammer’s motion to convert; and the denial of Hammer’s motion to

amend. We reverse the district court’s judgment of Hammer’s unconstitutional

bias claim; liberty interest, stigma plus claim; the claims against Ribi and Briscoe

in their individual capacities; Donoval’s claim; and the entry of costs.

Hammer sought to augment the record in regards to her liberty interest,

stigma plus claim. Because we are reversing and remanding this claim, Hammer’s

Motion to Augment the Record (Docket Entry 49) is DENIED. Additionally, the

Appellees’ Motion to Strike footnote 3 of Hammer’s amended reply brief (Docket

Entry 55) is GRANTED.

4 15-35687 AFFIRMED in part, REVERSED in part, and REMANDED.

The parties shall bear their own costs.

5 15-35687

FILED

Hammer v. City of Sun Valley, No. 15-35687

AUG 11 2017

WATFORD, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I think the district court correctly dismissed all of plaintiffs’ claims, and I

would therefore affirm the judgment in its entirety.