                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            FEB 20 2018
                      UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LAWRENCE M BECKER, as fiduciary of               No.    16-35191
the Xerox Corporation Savings Plan and
Xerox Corporation Retirement Income              D.C. No. 3:11-cv-05830-BHS
Guarantee Plan,

               Plaintiff,                        MEMORANDUM*

          v.

CARMEN STEPHANIE MAYS-
WILLIAMS,

               Defendant-Appellee,

ASA WILLIAMS, Jr., as personal
representative of the Estate of Asa Willie
Williams,

               Defendant-Appellant.

                     Appeal from the United States District Court
                       for the Western District of Washington
                     Benjamin H. Settle, District Judge, Presiding

                            Submitted February 6, 2018**
                                Seattle, Washington

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Before: FISHER, GOULD and PAEZ, Circuit Judges.

      Asa Williams, Jr., appeals the judgment entered by the district court in favor

of Carmen Stephanie Mays-Williams in this dispute over the decedent Asa

Williams, Sr.’s employer-sponsored savings and retirement plans. We review the

district court’s factual findings for clear error, its conclusions of law de novo and

its evidentiary rulings for an abuse of discretion, see Wagner v. County of

Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2013); Bertelsen v. Harris, 537 F.3d

1047, 1056 (9th Cir. 2008), and we affirm.

      1. We reject Asa Junior’s contention that his father strictly complied with

the terms of the plans for changing beneficiaries. After viewing all of the

evidence, the district court found Asa Junior “failed to establish that Asa Sr. was

the individual who called Xerox to change the beneficiary designation.” Asa

Junior’s does not distinctly challenge that finding in his opening brief, and even if

he did so, he has not shown the finding is clearly erroneous. Asa Junior did not

present admissible, persuasive evidence that it was Asa Senior who made the three

phone calls to Xerox. The district court’s finding is not “illogical, implausible, or

without support in inferences that may be drawn from facts in the record.” United

States v. Hinkson, 585 F.3d 1247, 1251, 1263 (9th Cir. 2009) (en banc).



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      2. We also reject Asa Junior’s argument that Asa Senior substantially

complied with the plans’ requirements for changing beneficiaries. Under

Washington law, “[s]ubstantial compliance requires that the insured has manifested

an intent to change beneficiaries and done everything reasonably possible to make

that change.” In re Estate of Freeberg, 122 P.3d 741, 743 (Wash. Ct. App. 2005).

Here, the district court’s finding that Asa Senior neither manifested an intent to

change beneficiaries nor did everything reasonably possible to make that change is

not clearly erroneous. The district court reasonably made this finding given Asa

Senior’s failure to sign, date and return the authorization forms and evidence

regarding his amicable relationship with Carmen, his strained relationship with Asa

Junior and his intent to provide for his children equally.

      3. The district court did not abuse its discretion by declining to exclude

evidence under Washington’s Deadman’s Statute, Wash. Rev. Code § 5.60.030. In

Erickson v. Robert F. Kerr, M.D., P.S., Inc., 883 P.2d 313, 317 (Wash. 1994), the

Washington Supreme Court, citing Maciejczak v. Bartell, 60 P.2d 31, 36 (Wash.

1936), said the “deadman statute only applies to actions brought on behalf of [the]

estate.” Here, Asa Junior is seeking benefits for himself, in his personal capacity,

not in his capacity as a representative of Asa Senior’s estate. See Aetna Life Ins.




                                           3
Co. v. Boober, 784 P.2d 186, 190 (Wash. Ct. App. 1990). The Deadman’s statute

therefore does not apply. See id. at 189-90 & n.21.

      4. The district court did not abuse its discretion by excluding the transcript

of the January 10, 2011 phone call for lack of authentication. Asa Junior shows

why this evidence was relevant under 29 C.F.R. § 2560.503-1(m)(8), but he does

not explain how it was authenticated. See Fed. R. Evid. 901(a) (“To satisfy the

requirement of authenticating or identifying an item of evidence, the proponent

must produce evidence sufficient to support a finding that the item is what the

proponent claims it is.”).

      AFFIRMED.




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