                                                                                      FILED
                               NOT FOR PUBLICATION
                                                                                      DEC 24 2013

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


                                FOR THE NINTH CIRCUIT


 WILLIAM WALLACE CAMPBELL,                              No. 10-36087

              Plaintiff - Appellant,                    D.C. No. 2:10-cv-00851-MJP
 v.

 UNITED STATES OF AMERICA,                              MEMORANDUM*

                Defendant - Appellee.

                      Appeal from the United States District Court,
                            Western District of Washington
                      Hon. Marsha J. Pechman, Chief District Judge

                        Argued and Submitted December 2, 2013
                                 Seattle, Washington

Before: TALLMAN and BEA, Circuit Judges, and MURPHY, District Judge.**

       William Campbell appeals the district court’s grant of summary judgment in

favor of the United States on his claims of vicarious liability and negligent supervision

arising under the Federal Tort Claims Act (“FTCA”) for damages he suffered from

alleged sexual misconduct by an employee of the Department of Veteran Affairs

         *
              This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
        **
               The Honorable Stephen Joseph Murphy, III, United States District Judge for the
Eastern District of Michigan, sitting by designation.

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Puget Sound Health Care System (“the VA”), Dr. Lori Phelps. We have jurisdiction

under 28 U.S.C. § 1291 and we affirm.

      We review a district court’s refusal to permit further discovery before ruling on

a summary judgment motion for abuse of discretion. Michelman v. Lincoln Nat. Life

Ins. Co., 685 F.3d 887, 892 (9th Cir. 2012). A district court abuses its discretion only

if the party requesting a continuance can show that allowing additional discovery

would have precluded summary judgment. Id.

      “If a nonmovant shows by affidavit or declaration that, for specified reasons,

it cannot present facts essential to justify its opposition, the court may. . . allow time

to obtain affidavits. . . or to take discovery.” Fed. R. Civ. P. 56(d). The district court

made no ruling on whether or not Campbell was entitled to additional discovery

because he failed sufficiently to request or move for further discovery. Campbell’s

appellate counsel now argues that the court should have construed what he terms

“Campbell’s repeated requests for more discovery” as such a motion. “[R]eferences

in memoranda and declarations to a need for discovery do not qualify as motions

under [Rule 56(d)].” Brae Transp., Inc v. Coopers & Lybrand, 790 F.2d 1439, 1443

(9th Cir. 1986).

      Campbell did not put the district court on notice that he was requesting more

discovery. In addition, Campbell made no showing that additional discovery would


                                            2
have precluded summary judgment and, indeed, his counsel makes no such argument

in the instant appeal.

      Campbell also contends that the district court improperly granted the

government’s motion on its merits. We review a district court’s grant of summary

judgment de novo. Shelley v. Geren, 666 F.3d 599, 604 (9th Cir. 2012). We must

determine, viewing the evidence in the light most favorable to the non-moving party,

whether there are any genuine issues of material fact and whether the district court

correctly applied the relevant substantive law. Oswalt v. Resolute Indus., Inc., 642

F.3d 856, 859 (9th Cir. 2011). Here, Washington law governs the determination of

liability, and we review the application of such state law de novo. 28 U.S.C.       §

1346(b); Simmons v. United States, 805 F.2d 1363, 1368 (9th Cir. 1986).

      In Washington, once an underlying tort is established, the employer will be held

vicariously liable if the employee was acting within the scope of his employment.

Robel v. Roundup Corp., 59 P.3d 611, 620 (Wash. 2002). The test for determining

whether an employee has acted within the scope of her employment is “whether the

employee was fulfilling his or her job functions at the time he or she engaged in the

injurious conduct.” Robel, 59 P.3d at 620, and has also been stated as “whether he was

engaged at the time in the furtherance of the employer’s interest.” Dickinson v.

Edwards, 716 P.2d 814, 819 (Wash. 1986) (quoting Elderr v. Cisco Constr. Co., 324


                                          3
P.2d 1082, 1085 (Wash. 1958)).

      The Washington Supreme Court has found that “where an employee’s acts are

directed toward personal sexual gratification, the employee’s conduct fall outside the

scope of his or her employment.” Robel, 59 F.3d at 621. The district court correctly

determined that Phelps’ acts fell outside the scope of her employment, and, therefore,

that the government is not vicariously liable.

      Simmons, 805 F.2d 1363, is distinguishable from the instant case based on its

facts. The district court here correctly reasoned that Phelps’ alleged acts took place

outside the scope of her employment because she saw Campbell as a patient for only

seventeen days and their sexual relationship did not take place until well after that

time. Therefore, the relationship at bar is unlike the one in Simmons where the

evidence showed that the therapist engaged in sexual acts with his patient during

therapy sessions which lasted for five years. Simmons, 805 F.2d at 1370-71.

      In addition, Campbell’s argument that the grant of summary judgment should

be reversed because the government adduced no evidence to show that Phelps’ acts

emanated from a wholly personal motive is unavailing. Campbell’s assertion that

Phelps’ actions could have been “triggered by some misguided attempt at therapy” is

completely speculative.

      Campbell also contends that the district court erred in granting summary


                                          4
judgment to the government on the negligent supervision claim. In Washington, “[t]he

theory of negligent supervision creates a limited duty to control an employee for the

protection of third parties, even where the employee is acting outside the scope of

employment.” Niece v. Elmview Group Home, 929 P.2d 420, 427 (1997) (en banc).

“An employer is not liable for negligently supervising an employee whose conduct

was outside the scope of the employment unless the employer knew, or in the exercise

of reasonable care, should have known the employee presented a risk of danger to

others.” Thompson v. Everett Clinic, 860 P.2d 1054, 1058 (Wash. Ct. App. 1993).

      Viewing the evidence in the light most favorable to Campbell, the district court

correctly found that no triable issue of fact existed as to whether the government knew

or should have known that Phelps presented a risk of danger to Campbell. The

evidence shows that Phelps’ direct supervisor did not know anything about the sexual

relationship and appropriately responded to the only information he received from

Phelps about the relationship, which is that she exchanged an email with him after his

discharge and that she was attracted to him. The district court also correctly concluded

that the supervisor’s absence for ten of the seventeen days of Campbell’s

hospitalization was not a ground for negligent supervision because it is undisputed

that the sexual relationship did not begin until over a year after this period. Campbell

also fails to raise a triable issue of fact that Dr. VanGoda should have known about


                                           5
the relationship and could be liable under a negligent supervision theory.

      The district court thus correctly granted summary judgment to the government.

      AFFIRMED.




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