                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 11 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LIL’ MAN IN THE BOAT, INC.,                      No.   16-17299

              Plaintiff-Appellant,               D.C. No. 3:16-cv-01471-JST

 v.
                                                 MEMORANDUM*
AUK TA SHAA DISCOVERY, LLC,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Jon S. Tigar, District Judge, Presiding

                     Argued and Submitted December 7, 2017
                            San Francisco, California

Before: SCHROEDER and OWENS,** Circuit Judges, and ELLIS,*** District
Judge.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              This case was submitted to a panel that included Judge Kozinski, who
recently retired. Following Judge Kozinski’s retirement, Judge Owens was drawn
by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Owens has read
the briefs, reviewed the record, and listened to oral argument.

      ***
            The Honorable Sara Lee Ellis, United States District Judge for the
Northern District of Illinois, sitting by designation.
      Lil’ Man In The Boat, Inc. (“Lil’ Man”) seeks remedies for breach of

contract, claiming defendant, Auk Ta Shaa Discovery, LLC (“Auk Ta Shaa”),

wrongfully refused to deliver the Queen of Seattle vessel after the parties had

allegedly orally agreed to the terms of a purchase. The District Court dismissed

the action. We affirm because, even if the District Court erred in dismissing for

lack of personal jurisdiction, Lil’ Man failed to state a claim.

      There are at least two reasons Lil’ Man failed to state a claim. First, there

was never any agreement as to the terms of the purchase. Although Lil’ Man

contends it accepted a “counter offer” from Auk Ta Shaa’s broker, the broker’s

response to Lil’ Man’s offer was not a counter offer, but rather a suggestion that

Lil’ Man offer more money. Second, the alleged written and agreed-upon

contractual terms did not contain the signature of Auk Ta Shaa or its broker as

required by the statute of frauds. See Cal. Civ. Code § 1624.5(a) (requiring sale of

personal property over $5,000 to be in writing and signed by party against whom

enforcement is sought); Secrest v. Sec. Nat’l Mortg. Loan Tr. 2002-2, 84 Cal. Rptr.

3d 275, 281 (Cal. Ct. App. 2008) (“A contract coming within the statute of frauds

is invalid unless it is memorialized by a writing subscribed by the party to be

charged or by the party’s agent.”).

      AFFIRMED.


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