                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 21 2014

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


JO ANN KURZ,                                     No. 12-35854

               Plaintiff - Appellant,            D.C. No. 1:11-cv-00342-EJL-
                                                 MHW
  v.

COLLEEN D ZAHN,                                  MEMORANDUM*

               Defendant - Appellee.


                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                           Submitted February 14, 2014**

Before:        HUG, FARRIS, and CANBY, Circuit Judges.

       Jo Ann Kurz appeals pro se from the district court’s judgment pursuant to 28

U.S.C. § 1915(e)(2)(B) dismissing her action arising out of matters related to her

employment as general manager and tennis director of the Boise Racquet and

Swim Club (“the Club”). We have jurisdiction under 28 U.S.C. § 1291. We

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), and

we affirm.

        On appeal, Kurz contends that Colleen Zahn is liable for violating various

rules of professional conduct, including failing to provide a warning required by

Upjohn Co. v. United States, 449 U.S. 383 (1981). However, the district judge

adopted the magistrate judge’s report recommending the dismissal of this claim.

This recommendation was based on the determination that violations of Upjohn or

other rules of professional conduct do not give rise to tort liability and that Kurz

had failed to allege that she had an attorney-client relationship with Zahn, which is

a requirement for stating a malpractice claim. In addition, the adopted report did

not permit Kurz to amend her complaint because any claim for legal malpractice

would be time-barred. Kurz has waived any challenge to these rulings by failing

to challenge them on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.

1999) (“[A]rguments not raised by a party in its opening brief are deemed

waived.”).

      The district court also adopted the magistrate judge’s recommendation to

dismiss Kurz’s claims alleging that Zahn misrepresented and concealed

information in connection with proceedings before the Idaho Civil Rights

Commission. Regardless of the legal label Kurz places on these claims, they are


                                           2
barred by the litigation privilege because the claims arose from alleged conduct

and communications made as part of Zahn’s representation of a client in

connection with a judicial or quasi-judicial proceeding and the complaint did not

allege that Zahn was acting outside the scope of her employment with the Club or

acting solely for her own benefit and not the benefit of the Club. See Taylor v.

McNichols, 243 P.3d 642, 653-55, 657-58, 660-61 (Idaho 2010).

      AFFIRMED.




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