                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 30 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SECURITY ALARM FINANCING                        No.   17-35688
ENTERPRISES, LP, a California Limited
Partnership,
                                                D.C. No. 3:13-cv-00102-SLG
                Plaintiff-Appellee

 v.
                                                MEMORANDUM*
ALARM PROTECTION TECHNOLOGY,
LLC, a Utah Limited Liability Company; et
al.,

                Defendants-Appellants.

                  On Appeal from the United States District Court
                            for the District of Alaska
                   Sharon L. Gleason, District Judge, Presiding

                       Argued and Submitted June 12, 2018
                               Anchorage, Alaska

Before: THOMAS, Chief Judge and CALLAHAN and BEA, Circuit Judges.

      This case concerns allegations of illegal competition in the home security

alarm market in Alaska. Security Alarm Financing Enterprises, L.P. (“SAFE”) is a

security alarm company that grows its business by purchasing customer accounts



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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from other companies and integrating those accounts into its business. In 2013,

SAFE purchased 1,450 accounts from another provider in Alaska. Between 2013

and 2015, SAFE lost over 800 of the Alaska accounts it had purchased, which far

exceeded the attrition projected by SAFE’s internal models. After investigation,

SAFE discovered that another alarm company, Alarm Protection Technology

(“APT”), was illegally interfering with SAFE’s accounts by, among other things,

falsely claiming an association with SAFE or defaming SAFE to customers.

      SAFE filed suit against APT in federal district court alleging claims for

violation of the Lanham Act, 15 U.S.C. § 1125; violation of Alaska’s Unfair Trade

Practices and Consumer Protection Act, Alaska Stat. § 45.50.471; defamation per

se; and misappropriation of trade secrets. After a trial, the jury found APT liable on

all counts and assessed total damages of $920,700. APT moved for judgment as a

matter of law (“JMOL”) or, in the alternative, for a new trial. The district court

denied the motions and entered judgment on the jury’s verdict. APT appeals the

district court’s judgment. We have jurisdiction under 28 U.S.C. § 1291 and we

affirm.

      1. We will affirm a district court’s decision to deny judgment as a matter of

law if “substantial evidence” supports the jury’s verdict.      Gilbrook v. City of

Westminster, 177 F.3d 839, 856 (9th Cir. 1999). Here, although SAFE did not

present evidence for each individual customer it claimed it lost due to APT’s

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conduct, SAFE did present testimony from several customers who experienced

APT’s illegal tactics, evidence that APT trained its salespeople to use illegal tactics,

and evidence that SAFE experienced much higher attrition in Alaska than it would

have if it was subject to only lawful competition. In light of this evidence, the jury

could reasonably infer that APT was responsible for a significant number of the

accounts SAFE lost. See Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 620–21 (9th

Cir. 1993). As a result, the district court did not err in denying APT’s motion for

judgment as a matter of law.

      2. We review a district court’s order denying a new trial for an abuse of

discretion. Gilbrook, 177 F.3d at 856. When a district court denies a motion for a

new trial after finding that the jury’s verdict is not against the clear weight of the

evidence, that decision is “virtually unassailable. In such cases, we reverse for a

clear abuse of discretion only where there is an absolute absence of evidence to

support the jury’s verdict.” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010)

(emphasis in the original). Here, there was evidence to support the jury’s apparent

conclusion that APT was responsible for a significant number of the accounts SAFE

lost in Alaska. Consequently, the district court did not err when it denied APT’s

motion for a new trial.

      3. APT argues that the district court erred in excluding as hearsay cancellation

letters purportedly sent by SAFE customers to SAFE. APT contends those letters

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are admissible under Rule 803(3)’s “then-existing state of mind” exception to the

hearsay rule or Rule 807’s catchall exception to the hearsay rule. We review a

district court’s decisions regarding the admission of evidence for an abuse of

discretion. Glover v. BIC Corp., 6 F.3d 1318, 1328 (9th Cir. 1993). In ruling on

Rule    803(3)     issues,   district   courts   “must   evaluate    three    factors:

contemporaneousness, chance for reflection, and relevance.”         United States v.

Ponticelli, 622 F.2d 985, 991 (9th Cir. 1980), overruled on other grounds by United

States v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en banc). Evidence that

the statement was not contemporaneous weighs against admission under Rule

803(3). Id. Ultimately, it is the reliability of the statement as evidence of the

declarant’s state of mind that determines admissibility. Id. Rule 807 allows the

admission of statements not specifically covered by hearsay exceptions if “the

statement has equivalent circumstantial guarantees of trustworthiness,” is material,

is more probative than any other evidence, and admitting the evidence will serve the

interests of justice.

       Here, SAFE presented evidence that the termination letters were not reliable

statements of the customers’ then-existing state of mind because some of the letters

were drafted by APT salespeople. Thus, the district court did not abuse its discretion

when it found that the letters were “not ‘spontaneous,’ but rather prepared with a

view of escaping contractual obligations.” Similarly, the district court did not abuse

                                           4
its discretion in denying admission under the catchall exception because the

customer letters lacked “equivalent circumstantial guarantees of trustworthiness.”

See Fed. R. Evid. 807.

      4. We decline to reach APT’s arguments regarding the district court’s denial

of its motion for summary judgment. Because it is not a final order, an order denying

summary judgment “is not properly reviewable on an appeal from the final judgment

entered after trial.” Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1358 (9th Cir.

1987). In the past, we have reviewed orders denying summary judgment after a jury

trial when the alleged error concerns a pure question of law. See Banuelos v. Constr.

Laborers’ Tr. Funds for S. Cal., 382 F.3d 897, 902 (9th Cir. 2004). However, in this

case, the alleged errors presented by APT are not pure issues of law, but rather

concern the sufficiency of the evidence that SAFE presented at summary judgment.

We decline to review these factbound determinations on appeal. See Williams v.

Gaye, 2018 WL 3382875 at *8 (9th Cir., Mar. 21, 2018).

      AFFIRMED.




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