                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 02 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RONALD R. RUSSELL,                               No.   15-55060

              Plaintiff-Appellant,               D.C. No.
                                                 5:13-cv-00717-DOC-DTB
 v.

PACIFIC MOTOR TRUCKING                           MEMORANDUM*
COMPANY,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                    Argued and Submitted November 10, 2016
                              Pasadena, California

Before: SCHROEDER and BYBEE, Circuit Judges, and SMITH,** Chief District
Judge.

      Plaintiff Ronald Russell appeals the grant of summary judgment in

Defendant Pacific Motor Trucking Company’s (“PMTC”) favor on his claims of


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable William E. Smith, United States Chief District Judge
the District of Rhode Island, sitting by designation.
fraudulent misrepresentation and breach of contract. We affirm in part and dismiss

in part.

1.     Rule 56(e)(2) of the Federal Rules of Civil Procedure permits the district

court to treat a fact as undisputed when “a party fails to properly support an

assertion of fact or fails to properly address another party’s assertion.” Although

Russell argued during summary judgment proceedings that certain facts were

disputed, he failed to properly support his argument with evidence. The district

court did not err in treating those facts as undisputed.

2.     We review for an abuse of discretion a district court’s determination that a

party’s affidavit is a sham. Yeager v. Bowlin, 693 F.3d 1076, 1079 (9th Cir. 2012).

The so-called “sham affidavit” rule provides “that a party cannot create an issue of

fact by an affidavit contradicting his prior deposition testimony.” Kennedy v.

Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). Portions of Russell’s

affidavit directly contradict his previous deposition testimony. For example,

Russell testified during his deposition that, prior to entering the 2009 lease, no one

from PMTC represented to him how long the owner-operator program would

continue. In his affidavit, however, he claims that before signing the 2009 lease he

was “assured that . . . the lease term would be indefinite as long as PMTC remained

in business.” Russell’s explanation for changing his testimony was not supported


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by the record. The district court did not abuse its discretion in disregarding those

portions of the affidavit that directly contradicted Russell’s former deposition

testimony.

3.    Summary judgment was appropriate on Russell’s fraudulent

misrepresentation claim. PMTC’s alleged representations that the owner-operator

program would be “a long-time thing” and that PMTC would provide equipment

maintenance for program participants are both statements of intent. For statements

of intent, Missouri law (which governs the parties’ lease) requires plaintiffs

alleging fraudulent misrepresentation to prove that the speaker never intended to

perform as indicated. Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d

112, 133 (Mo. 2010). Russell has not produced any evidence suggesting as much.

He points only to the thirty-day cancellation provision, but a provision allowing

either party to terminate an individual lease with thirty-days’ notice says nothing

about the intended longevity of the overall owner-operator program. And PMTC

did in fact provide maintenance on owner-operators’ trucks for a time,

undermining any contention that PMTC never intended to provide such

maintenance. See id. (holding that a defendant’s attempts to perform consistent

with its statements undermined the plaintiff’s allegation that the defendant never

intended to keep its promise).


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      Alternatively, Missouri law provides that a party who, after discovering the

defendant’s alleged fraud, enters into subsequent agreements concerning the same

subject matter waives the right to sue for fraud. Brown v. S. Joplin Lead & Zinc

Mining Co., 132 S.W. 693, 694 (Mo. 1910). Russell signed the lease on his second

truck with full knowledge of the lease’s terms. He therefore waived his right to sue

for fraud.

4.    Summary judgment was also appropriate on Russell’s breach of contract

claim. Russell’s complaint alleged that PMTC breached the lease agreement by (1)

cancelling the owner-operator program and (2) failing to help Russell sell his truck

after cancelling the agreement (an argument he later abandoned). On appeal,

Russell only argues that PMTC should be equitably estopped from enforcing the

cancellation provision and that PMTC breached its promise to provide

maintenance. It appears from the record before us that Russell raised both of these

claims for the first time in response to PMTC’s motion for summary judgment.

Plaintiffs may not raise allegations for the first time during summary judgment

proceedings. Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th

Cir. 2006). Accordingly, summary judgment was appropriate.

5.    Our holding that summary judgment was appropriate on both of Russell’s

claims does not rely on the conversations that Russell alleges were protected by the


                                          4
attorney-client privilege. Accordingly, we need not decide whether the privilege

applies.

6.    Russell fails to make any argument with respect to his contention that the

district court erred in dismissing his First Amended Complaint. “We review only

issues which are argued specifically and distinctly in a party’s opening brief. We

will not manufacture arguments for an appellant, and a bare assertion does not

preserve a claim, particularly when, as here, a host of other issues are presented for

review.” Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (citations

omitted). Further, the district court gave leave to amend the complaint, and Russell

filed a Second Amended Complaint that addressed the court’s concerns. We see

no need to revive the original complaint.

7.    “A timely notice of appeal from the judgment or order complained of is

mandatory and jurisdictional. Where no notice of appeal from a post-judgment

order awarding attorneys’ fees [or costs] is filed, the court of appeals lacks

jurisdiction to review the order.” Culinary & Serv. Employees Union, AFL-CIO

Local 555 v. Hawaii Employee Ben. Admin., Inc., 688 F.2d 1228, 1232 (9th Cir.

1982) (citations omitted). Russell did not file a separate notice of appeal for the

district court’s post-judgment award of costs to PMTC, nor did he amend his initial




                                            5
notice to include the costs award. This court thus lacks jurisdiction over that

award.

AFFIRMED in part and DISMISSED in part.




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