Orr v. Bank of America, Nt & Sa

Decision Date05 March 2002
Docket NumberNo. 00-16509.,00-16509.
Citation285 F.3d 764
PartiesRobin ORR, Plaintiff-Appellant, v. BANK OF AMERICA, NT & SA, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Kevin J. Mirch, Reno, NV, for plaintiff-appellant Robin Orr.

Patricia Gillette, Tracy S. Achorn, Heller Ehrman White & McAuliffe LLP, San Francisco, CA, for defendant-appellee Bank of America, NT & SA.

Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-98-3247 PJH.

Before GOODWIN, SNEED and TROTT, Circuit Judges.

ORDER AND AMENDED OPINION ORDER

SNEED, Circuit Judge.

The mandate, issued on March 27, 2002, is hereby recalled.

The opinion filed March 5, 2002, is amended. The Hearsay section of the opinion is substantially amended.

The panel directs the Clerk to reenter judgment. The parties may seek panel rehearing or rehearing en banc thereafter within the time limits provided by Federal Rule of Appellate Procedure 40.

OPINION

Robin Orr ("Orr") appeals the district court's grant of summary judgment in favor of Bank of America ("BOA"). The district court found that most of the evidence submitted by Orr in support of her opposition to BOA's motion for summary judgment was inadmissible due to inadequate authentication and hearsay. It held Orr had failed to present any admissible evidence to raise a triable issue of material fact and thus entered summary judgment in favor of BOA on Orr's First Amended Complaint ("Complaint"). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

BACKGROUND

Orr was a service manager for BOA's Incline Village branch in 1992. Joe Bourdeau ("Bourdeau") was its sales manager. In July 1992, the branch suffered a night-time deposit loss of $12,000. As part of its investigation, the FBI took a polygraph test from Orr.1 BOA claims it did not receive the results of Orr's polygraph test. Its position is corroborated by Orr's deposition testimony and the affidavit of an FBI agent who administered the test. Orr was never charged with any criminal wrongdoing.

In January 1993, George Burns, BOA's District Officer, and Vicki Haven, BOA's auditor, conducted an operational review of BOA's Incline Village branch. They reported forty-seven deficiencies. This led Julie Castle ("Castle"), BOA's Incline Village branch manager, to terminate Bourdeau and Orr for failure to implement proper control procedures.

Bourdeau and Orr subsequently raised $3.5 million to start the Bank of Lake Tahoe ("Tahoe Bank"). An application for deposit insurance was submitted to the Federal Deposit Insurance Corporation ("FDIC"), listing Orr as Tahoe Bank's proposed Vice President of Operations and Bourdeau as its President and CEO.

The FDIC interviewed BOA's Incline Village branch managers Castle and Robert Underwood ("Underwood") as part of its investigation of Tahoe Bank. Castle and Underwood insist they did not disclose any information about Orr to the FDIC. Orr, however, claims they submitted disparaging information about her to the FDIC. She points to Exhibit B, Bourdeau's deposition testimony in which he states that he saw negative documents about Orr at the FDIC and was told they were submitted by BOA. She also points to Exhibit C, a memo sent from Bob Geerhart to Scott Walshaw, both agents of the Nevada Department of Financial Institutions, concerning the investigation of Tahoe Bank in which Geerhart paints a suspicious portrait of Orr based on an FBI report. That report purportedly identified her as a suspect in an $18,000 theft of a deposit at BOA.2 At the close of its investigation, the FDIC denied Tahoe Bank's application.

In February 1995, Bourdeau filed an action against BOA alleging slander, fraudulent misrepresentation and intentional interference with business relations. The jury dismissed all but one count in which it found BOA liable for intentional interference with prospective business relations and awarded Bourdeau $1.2 million in compensatory damages. On appeal, the Nevada Supreme Court reversed and remanded for a new trial.3

Following the FDIC's denial of Tahoe Bank's application, the Nevada Banking Company purchased Tahoe Bank and opened a branch in Incline Village. It hired Bourdeau and Orr and became highly successful. Orr has been working there since January 1996 and is currently its Operations Officer.

Orr brought the present action against BOA on August 24, 1998. Her Complaint contains counts for intentional interference with existing contractual relations, intentional interference with prospective business relations, business disparagement, slander, intentional infliction of emotional distress, and violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), the Sherman Act, and the Employee Polygraph Protection Act. Orr alleges that the FDIC's rejection of Tahoe Bank's application injured her, costing her equity in Tahoe Bank and depriving her of valuable career opportunities.

BOA moved for summary judgment on Orr's Complaint. The district court found that twenty-two of the twenty-five exhibits submitted by Orr were inadmissible as hearsay or for lack of proper authentication. As the three admissible exhibits failed to raise a triable issue of material fact, the district court granted summary judgment in favor of BOA. Orr appeals.

STANDARD OF REVIEW

We review a grant of summary judgment de novo. See Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir.2001). We must determine, viewing the evidence in the light most favorable to the nonmoving party and drawing all justifiable inferences in its favor, whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Compare Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992), with Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987).

CHOICE OF LAW

This is a diversity action. The Federal Rules of Evidence govern. See Trammel v. United States, 445 U.S. 40, 47 n. 8, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980); Wray v. Gregory, 61 F.3d 1414, 1417 (9th Cir.1995) (per curiam) ("the Federal Rules of Evidence ordinarily govern in diversity cases"). Nevada law, including its statute of limitations, governs Orr's tort claims because the alleged torts occurred in the state of Nevada.4

DISCUSSION
I. Many of Orr's Exhibits Are Inadmissible Because of Inadequate Authentication and Hearsay.

In opposing BOA's motion for summary judgment, Orr submitted Exhibits A through Y, various documents attached as exhibits to the declaration of her counsel Kevin Mirch ("Mirch"). The district court admitted Exhibits A, U, and V. It excluded the remaining exhibits for inadequate authentication and hearsay. We confront the issue whether any of the excluded exhibits should have been admitted and whether such admission alters the outcome of the summary judgment motion.5 We conclude that with the exception of Exhibits A, U, and V, Orr's exhibits are inadmissible due to inadequate authentication or hearsay. Because Exhibits A, U, and V do not present a triable issue of material fact, we affirm the district court's grant of summary judgment.

A. Standard of Review of Evidentiary Rulings

The district court's exclusion of evidence in a summary judgment motion is reviewed for an abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). It follows that we must affirm the district court unless its evidentiary ruling was manifestly erroneous and prejudicial. See id. at 142, 118 S.Ct. 512; Maffei v. N. Ins. Co., 12 F.3d 892, 897 (9th Cir.1993).

B. Authentication

A trial court can only consider admissible evidence in ruling on a motion for summary judgment. See Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988). Authentication is a "condition precedent to admissibility,"6 and this condition is satisfied by "evidence sufficient to support a finding that the matter in question is what its proponent claims."7 Fed.R.Evid. 901(a). We have repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment. See Cristobal v. Siegel, 26 F.3d 1488, 1494 (9th Cir.1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550-51 (9th Cir.1989); Beyene, 854 F.2d at 1182; Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir.1987); Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686(9th Cir.1976).

In a summary judgment motion, documents authenticated through personal knowledge8 must be "attached to an affidavit that meets the requirements of [Fed.R.Civ.P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence."9 Canada, 831 F.2d at 925 (citation omitted). However, a proper foundation need not be established through personal knowledge but can rest on any manner permitted by Federal Rule of Evidence 901(b) or 902. See Fed.R.Evid. 901(b)(providing ten approaches to authentication); Fed.R.Evid. 902 (self-authenticating documents need no extrinsic foundation).

C. Most of Orr's Exhibits Are Inadmissible Because of Improper Authentication.
(a) Deposition Extracts
(i) Exhibit Y: Deposition of Castle

Exhibit Y purports to be an extract from the deposition of Castle in which she states that BOA's security officer Rick Parsons told her he knew the results of Orr's polygraph test.

This exhibit is not properly authenticated. The reporter's certification and the names of the deponent and the action are missing. The statement in Mirch's affidavit that Exhibit Y is a "true and correct copy" does not provide...

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