Ellison v. Hawthorne, 112613 FED9, 12-35948

Docket Nº:12-35948
Party Name:RENEE ELLISON; LOUIS A. BREUER, Plaintiffs - Appellants, v. JOHANNA E. HAWTHORNE, Defendant-Appellee.
Judge Panel:Before: KOZINSKI, Chief Judge, and BERZON and IKUTA, Circuit Judges. Chief Judge KOZINSKI, dissenting in part:
Case Date:November 26, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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RENEE ELLISON; LOUIS A. BREUER, Plaintiffs - Appellants,

v.

JOHANNA E. HAWTHORNE, Defendant-Appellee.

No. 12-35948

United States Court of Appeals, Ninth Circuit

November 26, 2013

NOT FOR PUBLICATION

Submitted August 15, 2013 [**] Anchorage, Alaska

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding D.C. No. 3:12-cv-00072-SLG

Before: KOZINSKI, Chief Judge, and BERZON and IKUTA, Circuit Judges.

MEMORANDUM [*]

Renee Ellison appeals the district court's dismissal of her claims in an adversary action filed against Johanna Hawthorne's estate in bankruptcy.

The district court did not err in denying Ellison's motion to file a second amended complaint adding claims for abuse of process and malicious prosecution, because her proposed amendments would have been futile. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998). Ellison's proposed abuse of process claim failed to allege that Hawthorne took any "overt act done in addition to the initiating of the suit, " which is a necessary element of an abuse of process action in Alaska. Amos v. Allstate Ins. Co., 184 P.3d 28, 38 (Alaska 2008) (quoting Caudle v. Mendel, 994 P.2d 372, 376 (Alaska 1999)). Her proposed claim for malicious prosecution also necessarily failed, as she was not victorious in the prosecution at issue. See Koollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988).

The district court did not err in granting summary judgment with respect to Count 2 (breach of the covenant of good faith) based on alleged misrepresentations made by Hawthorne. Because Ellison has not pointed to any legal or factual misrepresentation, there is no genuine issue of material fact relevant to this count. See Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1024 (9th Cir. 2012).

The district court did not err in granting summary judgment with respect to Count 4 (unfair and deceptive trade practices in violation of A.S. § 45.50.471), because the Alaska Supreme Court has ruled that this statute is inapplicable to residential leases like the one at issue here. Roberson v. Southwood Manor Assoc., L.L.C., 249 P.3d 1059, 1059 (Alaska 2011).

Nor did the district court err in granting summary judgment on Counts 8 and 9 (non-dischargeability of claims, and non-dischargeability of attorneys' fees, respectively, under 11...

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