Universe Sales Co. v. Silver Castle, Ltd.

Offshore Sportswear, Inc. et al. (“Sportswear”) 1 appeals the district court’s order granting summary judgment to plaintiff Universe Sales Co. (“Universe”) and denying Sportswear’s cross-motion for summary judgment, in Universe’s diversity action claiming that Sportswear was unjustly enriched. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review the district court’s grant of summary judgment de novo, see Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998), and we reverse.

I.

Universe filed this lawsuit on September 21, 1995 in California state court, seeking restitution for royalties it had paid to OCI — a company that allegedly did not own the two trademarks at issue (the “Marks”). The case was removed to the United States District Court for the Central District of California on October 23, 1995. On November 3, 1995, Sportswear filed an answer together with counterclaims seeking unpaid royalties and $19,-008 allegedly due on goods Universe bought from OCI in 1994.

On January 13, 1997, Universe filed a motion for summary judgment. Sportswear filed a cross-motion for summary judgment the next day. After many briefs were filed and the district court judge held two…

dissenting:

I dissent from the majority’s determination to reverse the district court’s grant of summary judgment in favor of Universe Sales Co. (Universe) and grant summary judgment in favor of Offshore Sportswear, Inc. (Sportswear). I do so because the record is clear that the district court thoroughly investigated the foreign law issue here and then appropriately determined that summary judgment was warranted in favor of Universe. In fact, the district court did everything the majority opinion now claims the court should have done.

“Foreign law, though formerly treated as an issue of fact, is now recognized as an issue of law, to be established by any relevant source, including testimony.” United States v. Peterson, 812 F.2d 486, 490 (9th Cir.1987) (citing Fed.R.Civ.P. 44.1). As the Fifth Circuit has noted, “[t]he necessity of sifting through foreign law does not mitigate against the use of summary proceedings.” Banco de Credito Indus., S.A. v. Tesoreria General, 990 F.2d 827 , 838 (5th Cir.1993). Thus, the majority is correct that the Kamiya declaration is admissible and a proper consideration on summary judgment. However, reversing the grant of summary judgment in favor of…