                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           MAR 02 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
RAYMOND G. SCHREIBER, Revocable                  No. 13-17455
Trust and ROBERT SCHREIBER,
                                                 D.C. No. 2:05-cv-00574-LDG-
              Plaintiffs - Appellants,           PAL

 v.
                                                 MEMORANDUM*
ESTATE OF ROBERT KNIEVEL, FKA
Evel Knievel; et al.,

              Defendants - Appellees.


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

                          Submitted February 10, 2016**
                            San Francisco, California

Before: HAWKINS and MURGUIA, Circuit Judges and MURPHY,*** District
Judge.



        *
             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).
        ***
             The Honorable Stephen Joseph Murphy III, District Judge for the U.S.
District Court for the Eastern District of Michigan, sitting by designation.
      Raymond G. Schreiber and his brother, Robert Schreiber, appeal from the

district court’s judgment denying their claims related to alleged intellectual

property rights in the performances, autobiography, and artwork of motorcycle

daredevil Robert “Evel” Knievel.1 The Court has jurisdiction pursuant to 28 U.S.C.

§ 1291. We affirm the district court’s judgment.

      The Court reviews the district court’s findings of fact following a bench trial

for clear error. Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 843 (9th

Cir. 2004). The clear error standard “is significantly deferential, and we will accept

the lower court’s findings of fact unless we are left with the definite and firm

conviction that a mistake has been committed.” Id. (internal quotation marks

omitted). We review the district court’s conclusions of law de novo. Id.

      The Schreibers seek to enforce three purported agreements with Knievel that

were drafted in 1982. The parties agree with the district court that Ohio contract

law governs the agreements. Under Ohio law, as elsewhere, a contract exists only

when the parties “consent to its terms,” there is a “meeting of the minds,” and the

contract is “definite and certain.” Episcopal Ret. Homes, Inc. v. Ohio Dep’t of

      1
       Raymond G. Schreiber died during the litigation in 2011, and the Raymond
G. Schreiber Revocable Trust was substituted as a plaintiff. For ease of reference,
this memorandum disposition refers to the individual instead of the trust. Evel
Knievel also died during the litigation, and his estate was substituted as a
defendant.

                                           2
Indus. Relations, 575 N.E.2d 134, 137 (Ohio 1991). To show the requisite meeting

of the minds when “more than two (2) persons are intended to be parties to a

proposed contract,” Ohio law requires that each person manifest an intention to be

bound to its essential terms. Wilson v. Brown, No. 07CA13, 2008 WL 1062183, at

*4 (Ohio Ct. App. Apr. 9, 2008) (quoting Living Waters Fellowship v. Ross, No.

00CA2714, 2000 WL 1617945, at *5 (Ohio Ct. App. Oct. 23, 2000)).

       Each of the 1982 agreements lists Knievel, Raymond G. Schreiber, and

Robert Schreiber as parties. Only Knievel signed the documents. At trial, Robert

Schreiber testified, against his interest, that he never agreed to any of the terms,

and the Schreibers concede that including Robert Schreiber in the agreements was

a mistake. In that light, we hold that the district court did not clearly err in its

factual finding that there was no meeting of the minds and that the agreements

were therefore unenforceable under Ohio law. See Garrison v. Daytonian Hotel,

663 N.E.2d 1316, 1317 (Ohio Ct. App. 1995) (observing that the question of

whether a meeting of the minds occurred is a “question of fact to be determined

from all the relevant facts and circumstances”).

       As to the film rights agreement specifically, we also agree with the district

court that the terms were fatally uncertain because they failed to specify which

“certain performances” of Knievel’s are included. See Mr. Mark Corp. v. Rush,


                                             3
Inc., 464 N.E.2d 586, 589-90 (Ohio Ct. App. 1983) (noting that the essential terms

of a contract must be sufficiently certain such that “they provide a basis for

determining the existence of a breach and for giving an appropriate remedy”

(internal quotation marks omitted)). Given the uncertainty of terms and the

unenforceability of the film rights agreement, the district court also did not err in

its determination of ownership of the various film footage and documentary

compilations at issue. Nor did the district court err in concluding that two

copyrights for Knievel footage held exclusively by Schreiber were invalid. See

Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 556-57 (9th Cir. 1990) (noting that

the transfer of a copyright requires a clear, written transfer of ownership).

      As to the autobiography and art work agreements, the Schreibers have failed

to challenge the district court’s alternative reasons as to why those agreements

were unenforceable. The Schreibers have therefore waived any challenge, and we

affirm the district court’s judgment on these alternative bases as well. See Hillis v.

Heineman, 626 F.3d 1014, 1019 n.1 (9th Cir. 2010).

      AFFIRMED.




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