Gerald Peters Gallery, Inc. v. Stremmel, 052220 FED9, 18-16677

Docket Nº:18-16677
Party Name:GERALD PETERS GALLERY, INC.; GERALD PETERS, Plaintiffs-Appellants, v. PETER STREMMEL; STREMMEL GALLERIES, LTD.; MIKE OVERBY; COEUR D'ALENE ART AUCTION OF NEVADA, LLC, Defendants-Appellees.
Judge Panel:Before: PAEZ, Circuit Judge, RAWLINSON, Circuit Judge, and WU, District Judge. Rawlinson, Circuit Judge, concurring in the judgment.
Case Date:May 22, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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GERALD PETERS GALLERY, INC.; GERALD PETERS, Plaintiffs-Appellants,

v.

PETER STREMMEL; STREMMEL GALLERIES, LTD.; MIKE OVERBY; COEUR D'ALENE ART AUCTION OF NEVADA, LLC, Defendants-Appellees.

No. 18-16677

United States Court of Appeals, Ninth Circuit

May 22, 2020

NOT FOR PUBLICATION

Argued and Submitted November 6, 2019 Portland, Oregon

Appeal from the United States District Court No. 3:17-CV-00273-MMD-VPC for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Before: PAEZ, Circuit Judge, RAWLINSON, Circuit Judge, and WU, [**] District Judge.

MEMORANDUM [*]

Gerald Peters Gallery, Inc. and Gerald Peters ("Peters") (collectively, "Appellants") appeal from a summary judgment order and judgment entered against them in this defamation/business disparagement action, which they brought against Peter Stremmel ("Stremmel"), Stremmel Galleries, Ltd., Mike Overby and Coeur D'Alene Art Auction of Nevada, L.L.C. (collectively, "Appellees"). We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. We conclude that the district court erred in its interpretation and application of Nevada law, and reverse and remand for further proceedings consistent with this decision.

This case involves the sale, by Appellants, of a painting titled "The Rain and the Sun," represented to be by Frank Tenney Johnson ("Painting"), that was purchased by R. D. Hubbard ("Hubbard"). When a question arose as to the Painting's authenticity, one of Hubbard's associates sent images of the Painting to Stremmel, who in a series of emails made comments such as: (1) "Mike Overby and I" "are absolutely certain" "that [the Painting] is not in fact by Frank Tenney Johnson," and (2) "I hope it wasn't represented to Dee as an FTJ-and I really hope he didn't pay a lot for it."

Under Nevada law, defamation requires proof of four elements: "(1) a false and defamatory statement . . . concerning the plaintiff; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages." Rosen v. Tarkanian, 453 P.3d 1220, 1225 (Nev. 2019). Where state law is unclear on a matter because "the highest court of a state has not directly spoken" on it, "a federal court sitting in diversity must generally use its 'own best judgment in predicting how the state's highest court would decide the case.'" T-Mobile USA Inc. v. Selective Ins. Co. of Am., 908 F.3d 581, 586 (9th Cir. 2018) (quoting Fiorito Bros., Inc. v. Fruehauf Corp., 747 F.2d 1309, 1314 (9th Cir. 1984)). "In making this prediction, the federal court 'must ascertain from all available data what the state law is and apply it.'" Id. (quoting Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir. 1982)). This "data" includes intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as...

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