FILED

NOT FOR PUBLICATION

JUL 19 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JINNI TECH LTD; BRUCE ROYCE, No. 20-35789

Plaintiffs-Appellants, D.C. No. 2:17-cv-00217-JLR

v.

MEMORANDUM*

RED.COM, INC.; RED.COM, LLC,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Submitted June 9, 2021** Seattle, Washington

Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges.

Jinni Tech Ltd. and its founder Bruce Royce (“Plaintiffs”) appeal from the

district court’s grant of summary judgment in favor of RED.com, Inc. and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). RED.com, LLC (together, “RED”). We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

First, Plaintiffs claim that comments posted online by RED’s president,

Jarred Land, accused Plaintiffs of stealing or hacking RED’s intellectual property

in order to develop what Plaintiffs describe as a competing product. Plaintiffs

argued in their First Amended Complaint and in their opposition to RED’s motion

for summary judgment that these statements amounted to defamation per se as to

Bruce Royce and trade libel as to Jinni Tech Ltd. under Washington law. See Life

Designs Ranch, Inc. v. Sommer, 364 P.3d 129, 134 (Wash. Ct. App. 2015); Auvil v.

CBS 60 Minutes, 67 F.3d 816, 820 (9th Cir. 1995). In granting summary judgment

in RED’s favor on these claims with respect to statements concerning unlawful or

criminal behavior, the district court relied solely on the ground that no such

statements were made by Land. In doing so, however, the district court appears to

have inadvertently overlooked Land’s statements and instead addressed only

comments posted by RED customers and fans. Accordingly, we vacate the

summary judgment order as to these two claims and remand to the district court to

allow it to consider whether Land’s comments constitute defamation per se or trade

libel. We leave for the district court to address, in the first instance, the parties’

additional arguments concerning these claims.

2 Second, we affirm the district court’s grant of summary judgment as to

Plaintiffs’ other claims. These claims include intentional infliction of emotional

distress, negligent infliction of emotional distress, false light, tortious interference,

and violations under the Lanham Act and Washington’s Consumer Protection Act.

Plaintiffs cite no authority supporting their argument that damages presumed for

purposes of their defamation per se claim may be actual damages for the purposes

of these other claims. Plaintiffs’ argument fails, and we hold that the district court

correctly granted summary judgment as to these claims.

Each party shall bear its own costs.

VACATED in part, AFFIRMED in part.

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