                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 15 2010

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

PLUSH LOUNGE LAS VEGAS LLC,                      No. 08-56953

             Plaintiff - Appellant,              D.C. No. 2:06-cv-02626-GW-JTL

  v.
                                                 MEMORANDUM *
HOTSPUR RESORTS NEVADA INC.,

             Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                         Argued and Submitted March 5, 2010
                                Pasadena, California

Before: GOULD, IKUTA and N.R. SMITH, Circuit Judges.

       Plush Lounge Las Vegas, LLC appeals the district court’s grant of summary

judgment to Hotspur Resorts Nevada, Inc. on Plush’s antitrust action under Section

2 of the Sherman Act, 15 U.S.C. § 2. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Plush argues that the district court erred in granting Hotspur summary

judgment on Plush’s Sherman Act claim. At summary judgment, an antitrust

plaintiff asserting a claim under Sherman Act Section 2 must submit admissible

evidence of the relevant product and geographic market that would be sufficient to

sustain a jury verdict on the issue of market definition. Rebel Oil Co. v. Atl.

Richfield Co., 51 F.3d 1421, 1435 (9th Cir. 1995) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986)); see also Fed. R. Civ. P. 56(e). Absent such evidence,

summary judgment is appropriate. Rebel Oil, 51 F.3d at 1435.

      Plush submitted the declarations of Roland Katavic and Jerrold S. Pressman

in support of a proposed market definition of “cocktails and hors d’oeuvres in an

entertainment atmosphere within the [Hotspur] Resort.” The district court ruled

that neither Katavic nor Pressman qualified as an expert under Federal Rule of

Evidence 702 and struck the portions of each declaration that purported to define

the relevant market. We review the district court’s decision to exclude expert

testimony for an abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S.

137, 152 (1999). A district court abuses its discretion when it applies an incorrect

legal standard, or when it applies the correct legal standard but does so in a manner

that is illogical, implausible, or without support in the record. United States v.

Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).


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      The district court did not abuse its discretion in striking large portions of the

Katavic and Pressman declarations. Neither declarant provided adequate

foundational information about what training—whether in the classroom or on the

job—gave rise to their ability to define a market for antitrust purposes. The

declarants’ reference to their business experience, without more, was insufficient.

The declarations presented legal conclusions without underlying factual support,

and therefore constitute “unsupported speculation.” See Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 590 (1993). Finally, neither declarant provided an

explanation of the methodology used to arrive at the proposed market definition.

See Kumho Tire, 526 U.S. at 151. Given these deficiencies, it was not illogical for

the district court to determine that the declarations fell short of the reliability and

relevancy requirements for the admissibility of expert testimony under Rule 702.

See id. at 152. The district court did not abuse its discretion in sustaining

Hotspur’s objections to the portions of the Katavic and Pressman declarations that

purported to define the relevant market.

      With large portions of the Katavic and Pressman declarations stricken, Plush

had insufficient evidence to sustain a jury verdict on its proposed market

definition. The applicable market definition is not an opinion based on Katavic’s

or Pressman’s sensory perception, so, contrary to Plush’s argument, the district


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court could not have admitted their market definitions as lay opinions. See Fed. R.

Evid. 701(a); United States v. Durham, 464 F.3d 976, 982 (9th Cir. 2006)

(explaining that an admissible lay opinion must be predicated on facts perceived

with the witness’s own senses). Outside of the Katavic and Pressman declarations,

Plush’s only evidence of market definition was a citation to two statements made

by Hotspur’s managers during their depositions. In these statements Mr. Roberts

stated “yes” when asked whether there was a market within the resort and a larger

market outside the resort, and Mr. Roughley stated that 75–85% of hotel guests and

conventioneers use the resort’s food and beverage services. Neither statement,

however, refers to the relevant product market, so even if the statements were

admissible at trial they would be insufficient to sustain a jury verdict on the issue

of market definition.1

      AFFIRMED.




      1
              Because we resolve this appeal on the basis of affirming the
evidentiary rulings and our view of the lack of admissible evidence on relevant
product market, we need not and do not reach other issues of antitrust law raised by
the parties and urged to be pertinent to the summary judgment.

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