                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         May 27, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
TIMOTHY MELLON, a Wyoming
resident,

             Plaintiff - Appellant,
                                                           No. 14-8062
v.                                               (D.C. No. 1:13-CV-00118-SWS)
                                                            (D. Wyo.)
THE INTERNATIONAL GROUP FOR
HISTORIC AIRCRAFT RECOVERY, a
Delaware non-profit corporation;
RICHARD E. GILLESPIE,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges.


      Plaintiff Timothy Mellon was a donor for one of defendants’ expeditions

looking for the wreckage of Amelia Earhart’s lost plane. Alleging that defendants

induced him to make his donation by falsely representing that previous expeditions to

the same general location had yet to produce conclusive results, he brought this

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
action asserting claims for fraud, negligent misrepresentation, negligence, and

violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). The

district court dismissed the negligence and RICO claims under Fed. R. Civ. P.

12(b)(6) in an early order and then granted summary judgment to defendants on the

fraud and negligent misrepresentation claims in a published decision, see Mellon v.

Int’l Grp. Historic Aircraft Recovery, 33 F.Supp.3d 1277 (D. Wyo. 2014).

Mr. Mellon now appeals, challenging only the grant of summary judgment.

      The district court “shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine if there is

sufficient evidence so that a rational trier of fact could resolve the issue either way.

A fact is material if under the substantive law it is essential to the proper disposition

of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011)

(citation and internal quotation marks omitted). “For dispositive issues on which the

plaintiff will bear the burden of proof at trial, he must go beyond the pleadings and

designate specific facts so as to make a showing sufficient to establish the existence

of an element essential to his case in order to survive summary judgment.” Cardoso

v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007) (brackets and internal quotation

marks omitted). And “[e]vidence, including testimony, must be based on more than

mere speculation, conjecture, or surmise.” Id. (internal quotation marks omitted).




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We review the district court’s determination de novo, applying these same standards.

Id.

      The district court touched on more than one potential legal deficiency in

Mr. Mellon’s claims, but it will suffice here to focus on the primary one covering

both claims: lack of actionable falsity. Under state substantive law, which governs

this diversity action, see Hiner v. Deere & Co., Inc., 340 F.3d 1190, 1192 (10th Cir.

2003), falsity is a material element of both a fraud claim (requiring a false

representation) and a negligent misrepresentation claim (requiring provision of false

information), Birt v. Wells Fargo Home Mortg., Inc., 75 P.3d 640, 656 (Wyo. 2003).

And only facts, not opinions, can be actionably false. See id. at 657-58; see also

Universal Drilling Co., LLC v. R & R Rig Serv., LLC, 271 P.3d 987, 997 (Wyo.

2012). Whether a representation is one of fact or one of opinion is a question of law.

Birt, 75 P.3d at 658.

      Mr. Mellon based his claims on an implied representation, as the district court

explained:

      What was affirmatively communicated to [Mr. Mellon] is that
      TIGHAR[1] was planning another expedition in search of the Earhart
      plane. Certainly, on its face, this representation was and is not false,
      nor does [Mr. Mellon] assert the materials provided to him by
      Defendants prior to his donation contained false information. Rather,
      [Mr. Mellon] contends the representation is false because it suggests the
      Earhart plane had not already been found.
1
      “TIGHAR” refers to defendant “The International Group for Historical
Aircraft Recovery,” the corporation through which defendant Richard E. Gillespie
mounted expeditions searching for the Earhart wreckage site.


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Mellon, 33 F.Supp.3d at 1284. Mr. Mellon believes video evidence obtained

during a prior expedition in 2010 undercut this tacit representation, i.e., “that

TIGHAR had within its possession critical evidence plainly showing that it

had likely located . . . Earhart’s wreckage site.”2 Aplt. Br. at 2. The district

court concluded that defendants’ implied representation regarding the

insufficiency of the extant evidence to definitively identify the wreckage

site—as well as Mr. Mellon’s belief that the site had been found—were, on the

record developed in the case, matters of opinion, not false factual matters:

      Ultimately, [Mr. Mellon’s] theory is based on his opinion that the video
      footage reveals the Earhart wreckage, apparently believing that the
      proof is self-evident in the footage. Defendants’ representation that
      they were planning another expedition to find the wreckage was based
      on their opinion they had not yet found it. . . . [T]there is no evidence to
      support a finding that at the time Defendants made the alleged
      misrepresentation they had, in fact, found Amelia Earhart’s plane.

Mellon, 33 F.Supp.3d at 1285 (footnote omitted); see also id. at 1287

(“Plaintiff has no more than theories and opinions that Earhart’s plane, or parts

of it, are depicted in the 2010 footage. Defendants disagree. As stated

previously, [such] expressions of opinion are not [actionable] representations




2
       The video footage was not the only evidence relating to the potential location
of the Earhart plane, but this new evidence obtained in 2010 is the focal point of
Mr. Mellon’s claims. Like the district court (and frequently Mr. Mellon himself), we
thus refer to the footage as a shorthand for all of the evidence from which Mr. Mellon
believes defendants had or should have determined the location of the plane.


                                          -4-
of fact . . . .”). The district court summarized its consequent holding on

summary judgment as follows:

             Defendants represented to [Mr. Mellon] they were planning
      another expedition in their continued quest to find the wreckage of
      Amelia Earhart’s airplane. Upon reading about Defendants’ efforts,
      [he] contacted Defendants and expressed his interest in supporting the
      expedition with a monetary contribution. That’s exactly what the
      parties then did. No false representations were made. The lost had not
      been found . . . or maybe it had. Regardless, no rational trier of fact
      could find Defendants falsely represented they had not found Earhart’s
      plane by embarking on another expedition in hopes of finding
      conclusive evidence to prove it. No matter how convinced or sincere
      [Mr. Mellon] is in his subjective belief and opinion that Amelia
      Earhart’s airplane was or should have been discovered prior to the
      making of his donation, that belief and opinion is insufficient to create a
      genuine dispute of material fact.

Id. at 1287.

      We agree. As the district court repeatedly emphasized, there is no proof

in the record that, when the 2010 video footage was reviewed before the 2012

expedition, objects observed in the footage were in fact from Earhart’s plane.

Mr. Mellon’s own experts would not confirm that the footage proved the plane

had been found.3 Without such proof, any contemporaneous belief expressed


3
       The district court noted that these “experts’ opinion, formed after having the
benefit of viewing video from both the 2010 and 2012 expeditions, likewise falls
short of establishing the falsity of Defendants’ representation that they had not found
the airplane. Rather, the experts simply opine that the 2010 video footage depicts
man-made objects consistent with parts of the Earhart [plane], leading them to the
conclusion that the identified objects are likely to have originated from Earhart’s
[plane].” Mellon, 33 F.Supp.3d at 1285 (internal quotation marks omitted). Indeed,
defendants too believed—and publicly stated—that “they had circumstantial but
strong evidence reinforcing their theory about the location of the wreckage.” Id.


                                          -5-
about the plane—that it (likely) was or was not in the area where defendants

suspected it to be when they embarked on the 2012 expedition—was mere

opinion that could not be false. Mr. Mellon insists a jury should decide what it

believes the video shows. But, as already noted, distinguishing opinions from

actionable factual representations is a matter of law, and the district court

determined—correctly in our view—that beliefs about the possible location of

Earhart’s plane based on the 2010 video footage were opinions rather than

facts. Any speculation on the matter by a jury would thus simply be one more

opinion—both procedurally inappropriate and legally immaterial.4

      Finally, Mr. Mellon contends there is independent circumstantial

evidence of fraudulent intent to support his fraud claim:5 defendants’ secrecy

about the suggestive 2010 video footage and their negotiation of an agreement

with the local government to afford them some rights in the event Earhart

4
       Mr. Mellon, who acknowledges that Birt made the opinion/fact distinction a
question of law, also notes an earlier decision stating that “in doubtful cases the
question of whether [the operative] representation is an opinion or fact should be left
to the jury.” White v. Ogburn, 528 P.2d 1167, 1169 (Wyo. 1974). After Birt, it is not
clear what import, if any, should be attributed to the statement from White, given that
“questions of law are for courts to determine,” Vassos v. Roussalis, 658 P.2d 1284,
1286 (Wyo. 1983). We need not opine on the matter, however, because we conclude
that the disposition here is not “doubtful.”
5
       It is not clear whether Mr. Mellon raises this contention in response to the
district court’s brief discussion of the distinct element of intent or whether he means
to suggest that a demonstration of fraudulent intent can substitute for or obviate an
antecedent failure to establish that the subject matter is one of fact rather than
opinion. He does not cite any authority for the latter point here. In any event, the
evidence is not sufficient to create a triable issue, as explained above.


                                          -6-
artifacts were discovered during the 2012 expedition. We agree with the

district court that these efforts are entirely consistent with defendants’ stated

opinion that the footage lent important support to—but did not confirm—their

theory of where the plane might be found. See id. at 1281 n.3. The attribution

of fraudulent intent on the basis of such facially innocent actions is the sort of

“speculation, conjecture, or surmise” that cannot forestall summary judgment.

Cardoso, 490 F.3d at 1197 (internal quotation marks omitted); see, e.g.,

Kincheloe v. Milatzo, 678 P.2d 855, 862 (Wyo. 1984) (noting “fraud cannot be

imputed from facts that are as consistent with an honest intention”). Similarly,

Mr. Mellon cites defendants’ prompt examination of the new evidence from

the 2012 expedition, and resultant public announcement of the discovery of a

debris field, as suggesting a fraudulent motive in connection with defendants’

slower processing and more tentative treatment of the results from the 2010

expedition. Again, the difference in response after the two expeditions is fully

consistent with an innocent reaction to the obvious difference in circumstances

and does not create a triable issue of fraud.

      Mr. Mellon has not demonstrated any error in the district court’s ruling on

summary judgment. The district court’s judgment is, accordingly, affirmed.


                                                 Entered for the Court


                                                 Bobby R. Baldock
                                                 Circuit Judge

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