                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            DEC 1 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ELIE HARFOUCHE,                                  No.   16-15688

              Plaintiff-Appellant,               D.C. No.
                                                 2:13-cv-00615-LDG-NJK
 v.

HAIFA WEHBE; et al.,                             MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Lloyd D. George, District Judge, Presiding

                    Argued and Submitted November 14, 2017
                            San Francisco, California

Before: THOMAS, Chief Judge, PAEZ, Circuit Judge, and SAVAGE,** District
Judge.

      Appellant Elie Harfouche appeals the district court’s orders granting Haifa

Wehbe’s motion for summary judgment and denying Harfouche’s motion for

discovery sanctions. 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.
      **
             The Honorable Timothy J. Savage, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
      1. “We review de novo the district judge’s decision to grant summary

judgment to determine whether there are any genuine issues of material fact and

whether the district judge correctly applied the substantive law.” Hazle v. Crofoot,

727 F.3d 983, 990 (9th Cir. 2013); see also Fed. R. Civ. P. 56(a). An issue of

material fact is “genuine” if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). As the parties do not argue otherwise, Nevada principles of

contract law govern the performance and interpretation of the contract at issue.

      The district court did not err in granting Wehbe’s motion for summary

judgment on Harfouche’s breach of contract claim. The parties’ contract required

Harfouche to “pay all the charges of the . . . entry visas” and “hand [Wehbe] . . .

entry visas” for her concert tour of the United States and Canada. The “Subject” of

the valid contract addendum stated that singer Ragheb Alame would accompany

Wehbe on tour. Harfouche, however, failed to obtain a United States entry visa for

Alame. Harfouche’s failure to do so defeated the essential purpose of the contract

by preventing Alame from entering the United States to perform with Wehbe, and

thus constituted a material breach. See 23 Williston on Contracts § 63:3 (4th ed.).

The district court properly determined under Nevada law that Harfouche’s material

breach excused Wehbe’s subsequent refusal to perform in the United States. See


                                           2
Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 536 (9th Cir. 2011); Thornton v.

Agassiz Const., Inc., 799 P.2d 1106, 1108 (Nev. 1990) (per curiam).

      2. As the party moving for discovery sanctions, Harfouche “had the burden

of establishing spoliation by demonstrating that [Wehbe] destroyed documents and

had some notice that the documents were potentially relevant to the litigation

before they were destroyed.” Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 766

(9th Cir. 2015) (internal quotation marks omitted). “We review a district court’s

denial of a motion for sanctions based on spoliation of evidence for abuse of

discretion,” id. at 759, and we review underlying factual findings for clear error,

Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006).

      Harfouche argues that Wehbe despoiled evidence when her assistant deleted

documents in her possession after the failed United States concert tour but prior to

litigation. Harfouche, however, has not demonstrated that Wehbe’s assistant

destroyed any documents relevant to the instant litigation. Furthermore, there is no

evidence that Wehbe was on notice of litigation when her assistant deleted the

documents in her possession. Because Harfouche has not carried his burden of

establishing spoliation, the district court did not abuse its discretion in declining to

impose discovery sanctions.

      AFFIRMED.


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