NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 16 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDI ALEXANDER; JACKSON No. 19-16758

YOUNG,

D.C. No. Plaintiffs-Appellants, 2:16-cv-02268-MMD-DJA

v.

MEMORANDUM*

KATHRYN FALK; ROMANTIC TIMES,

INC., DBA Romantic Times Magazine,

Defendants-Appellees,

and

JANE DOE, AKA Gracie Wilson,

Defendant.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted August 13, 2020 San Francisco, California

Before: HAWKINS and CHRISTEN, Circuit Judges, and GRITZNER,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa, sitting by designation. Randi Alexander1 and Jackson Young appeal the district court’s dismissal of

their Lanham Act claims and grant of summary judgment as to their other claims in

favor of Kathryn Falk and Romantic Times, Inc. (RT). Default was entered against

a third defendant, Gracie Wilson, who is not a party to this appeal. The claims

arise out of statements Falk and Wilson allegedly made about Alexander and

Young during and shortly after an RT convention in Las Vegas, Nevada in April

2016. We have jurisdiction pursuant to 28 U.S.C. § 1291 and, on de novo review,

Elliott v. Google, Inc., 860 F.3d 1151, 1155 (9th Cir. 2017), we affirm.

1. To establish their Lanham Act libel/commercial disparagement and false

advertising claims, Appellants must show “an injury to a commercial interest in

reputation or sales,” and “economic or reputational injury flowing directly from the

deception wrought by the defendant’s advertising[.]” Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 131–33 (2014). Here, the district court

correctly found Appellants could not maintain their trade libel/commercial

disparagement and false advertising claims because they failed to provide non-

speculative evidence of deception. See Loomis v. Cornish, 836 F.3d 991, 997 (9th

Cir. 2016). Further, Appellants failed to show that any alleged misrepresentations

1 Randi Alexander is a pen name and Jackson Young is a stage name. The district court granted Alexander and Young leave to proceed under pseudonyms up until the time of trial.

2 proximately caused a cognizable injury. Lexmark, 572 U.S. at 140. We therefore

affirm the district court’s dismissal of Appellants’ Lanham Act claims.

The district court’s grant of summary judgment as to Appellants’ consumer

fraud and deceptive trade practices claim based on the same allegations is also

affirmed. See Nev. Rev. Stat. § 598.0915(8). Appellants’ request for injunctive

relief was premised on their Lanham Act and consumer fraud/deceptive trade

practices claims, which the district court properly dismissed; therefore, the grant of

summary judgment on the injunctive relief claims was also appropriate.

2. On this record, the defamation, business disparagement, and false light

claims do not survive summary judgment. Under Nevada law, Appellants’

defamation claims require proof of, among other things, “a false and defamatory

statement.” Clark Cty. Sch. Dist. v. Virtual Educ. Software, Inc., 213 P.3d 496,

503 (Nev. 2009) (quoting Pope v. Motel 6, 114 P.3d 277, 282 (Nev. 2005)). Even

in Appellants’ best light, none of their proffered statements support a defamation

claim—not the May 2015 text message to Young, Wilson’s 2016 Facebook post,2

and Appellants’ suggestion that Falk spread rumors of an affair between Alexander

2 The district court’s order incorrectly attributed Facebook posts by RT and Falk made on May 3, 2016, which indicated Young was “banned” from RT conventions, as having occurred in 2017. However, the error is of no ultimate moment because, incorrect date aside, Appellants have failed to identify sufficient evidence that Falk’s or RT’s statements about receiving reports of allegations against Young were false.

3 and Young. Further, although statements “imputing serious sexual misconduct”

are considered defamatory per se and do not require proof of damages, the record

does not contain sufficient evidence to support Appellants’ claim on these grounds.

See K-Mart Corp. v. Washington, 866 P.2d 274, 282 (Nev. 1993), receded from on

other grounds by Pope, 114 P.3d at 317. What’s more, the allegations that Falk

spread rumors of blackmail against Young to an RT convention attendee are belied

by the attendee’s testimony, and Appellants’ self-serving testimony to the contrary

does not survive summary judgment. See Range Rd. Music, Inc. v. E. Coast

Foods, Inc., 668 F.3d 1148, 1152 (9th Cir. 2012) (“A ‘conclusory, self-serving

affidavit, lacking detailed facts and any supporting evidence’ is insufficient to

create a genuine issue of material fact.” (quoting FTC v. Publ'g Clearing House,

Inc., 104 F.3d 1168, 1171 (9th Cir. 1997))). And because Appellants failed to

identify evidence that Falk or RT’s statements are false and disparaging, their

business disparagement and false light claims fail, too. See Clark Cty. Sch. Dist.,

213 P.3d at 504–05 (noting a business disparagement claim additionally requires

proof of malice); Flowers v. Carville, 310 F.3d 1118, 1132–33 & n. 14 (9th Cir.

2002) (noting this court will “affirm dismissal of the false light claims where we

have affirmed dismissal of the parallel defamation claims”). As such, the district

court’s grant of summary judgment as to these claims is affirmed.

4 3. We affirm the district court’s grant of summary judgment on Appellants’

intentional interference with contractual relations and prospective economic

damages claims based on lack of evidence. Specifically, even though Appellants

point to record evidence that other conventions cut ties with Young after

allegations were made against him, they cite no evidence that Falk or RT knew of

his relationships with those conventions, communicated allegations to the

convention organizers, or otherwise intended to disrupt Young’s relationship with

the conventions. Appellants have identified no evidence in the record

substantiating Falk and RT knew of and intended to interfere with any other

contracts or prospective contractual relationships. See Keenan v. Allan, 91 F.3d

1275, 1279 (9th Cir. 1996) (“[I]t is not our task, or that of the district court, to

scour the record in search of a genuine issue of triable fact.”). Thus, these claims

fail.

4. The record does not contain sufficient proof of “extreme and outrageous

conduct with either the intention of, or reckless disregard for, causing emotional

distress” to support Appellants’ intentional infliction of emotional distress claim.

Olivero v. Lowe, 995 P.2d 1023, 1025 (Nev. 2000) (quoting Barmettler v. Reno

Air, Inc., 956 P.2d 1382, 1386 (Nev. 1998)). The conduct complained of—Falk

and RT’s reports of having received complaints regarding Young’s behavior and

Facebook posts—were not “beyond the bounds of decency” to qualify as extreme

5 and outrageous. Abrams v. Sanson, 458 P.3d 1062, 1069–70 (Nev. 2020) (first

citing Olivero, 995 P.2d at 1025; then citing Maduike v. Agency Rent-A-Car, 953

P.2d 24, 26 (Nev. 1998) (per curiam)).

5. Last, Appellants’ civil conspiracy and concert of action claim rests on our

acceptance of their spoliation argument. “[A] trier of fact may draw an adverse

inference from the destruction of evidence relevant to a case” in part because of its

deterrent effect and because “a party who has notice that a document is relevant to

litigation and who proceeds to destroy the document is more likely to have been

threatened by the document than is a party in the same position who does not

destroy the document.” Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991)

(quoting Nation-Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d 214,

218 (1st Cir. 1982)). Here, although a jury could have drawn an adverse inference

that Young never sent inappropriate text messages to Wilson, even while viewing

the evidence in the light most favorable to Alexander and Young, there is an

inadequate basis to infer the missing texts/emails showed an agreement between

Falk and Wilson to defame Young. With this element missing, the civil conspiracy

and concert of action claim fails.

AFFIRMED

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