                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 23 2014

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



                           FOR THE NINTH CIRCUIT


SCOTTRADE, INC.,                                 No. 12-35711

              Plaintiff,                         D.C. No. 1:11-cv-00003-RFC

  v.
                                                 MEMORANDUM*
CHRIS GIBBONS; ARNOLD FALLER;
PATRICIA FALLER; KIMBERLY
CHABOT,

              Defendants-cross-claimants -
Appellees,

SHANE M. LEFEBER,

              Defendant-counter-claimant -
Appellee,

  V.

KRISTINE DAVENPORT,

              Defendant-third-party-
plaintiff - Appellant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
SCOTTRADE, INC.,                              No. 12-35746

             Plaintiff - Appellee,            D.C. No. 1:11-cv-00003-RFC

 v.

PATRICIA FALLER,

             Defendant-cross-claimant -
Appellee,

SHANE M. LEFEBER,

             Defendant-counter-claimant -
Appellant,

 V.

KRISTINE DAVENPORT,

              Defendant-third-party-
plaintiff - Appellee,

 V.

ARNOLD FALLER,

             Third-party-defendant -
Appellee.


                  Appeal from the United States District Court
                          for the District of Montana
               Richard F. Cebull, Senior District Judge, Presiding




                                       -2-
                           Submitted October 10, 2014**
                                Portland, Oregon

Before: GOULD, CHRISTEN, and NGUYEN, Circuit Judges.

      On September 15, 2010, James LeFeber (“LeFeber”) died, leaving the

contents of his Scottrade brokerage account to five of his friends: Shane Lefeber

(“Shane”), Patricia Faller (“Faller”), Kristine Davenport (“Davenport”),

Christopher Gibbons and Kimberly Chabot. However, one of those

beneficiaries—Davenport—sought to claim all of LeFeber’s estate and brokerage

account, based on an unrecorded oral contract that she allegedly made with

LeFeber in 2007. She filed suit in Montana state court.

      Faced with competing claims over LeFeber’s account, Plaintiff-Appellee

Scottrade, Inc. (“Scottrade”) filed an interpleader action in the United States

District Court for the District of Montana. A welter of claims, crossclaims and

counter-crossclaims followed. Seeking the entire account, Davenport alleged a

conspiracy of the other beneficiaries to interfere with the purported 2007 oral

contract. Her causes of action included undue influence, duress, fraud, and breach

of fiduciary duty as well as others, like interference with expectancy, not

recognized by Montana law. She also claimed that the conspirators, after inducing

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                         -3-
LeFeber to break his contract, had murdered him by giving an overdose of the pain

medications he took for terminal esophageal cancer, and had destroyed evidence of

their crimes by illegally cremating LeFeber’s body. Davenport also filed many

procedural motions which 1) challenged the court’s jurisdiction over the

interpleader action and its dismissal of Scottrade; 2) tried to transfer venue to

another Division of the District of Montana; and 3) tried to disqualify the presiding

judge for bias. She also haled Faller’s husband, Arnold Faller—who is not a

beneficiary of LeFeber’s brokerage account—into court to defend himself against

her claims of conspiracy. The district court denied all of these motions, dismissed

both Scottrade and Arnold Faller with prejudice, and eventually granted summary

judgment against Davenport and awarded the other parties attorney fees and costs.

      On appeal, Davenport makes thirty-nine claims of error, renewing the

arguments that she had presented in the district court and also challenging the

district court’s award of attorney fees and costs. On cross-appeal, Shane appeals

the district court’s denial of prejudgment interest to the prevailing beneficiaries.

We have jurisdiction under 28 U.S.C. § 1291. Regarding the award of attorney

fees and costs, we vacate the award and remand to the district court with

instructions to allow Davenport to file any objections as to the amount of the award




                                          -4-
only. On the remainder of Davenport’s claims, and on Shane’s claim, we affirm

the district court.

       Davenport’s claims regarding the dismissal of Scottrade and Arnold Faller

from the litigation do not persuade us. Scottrade’s decision to initiate an

interpleader action to resolve the competing claims to the brokerage account was

appropriate. The district court’s jurisdiction was proper. See Mack v.

Kuckenmeister, 619 F.3d 1010, 1024 (9th Cir. 2010). Also proper was its

dismissal of Scottrade as a neutral stakeholder. See Gen. Atomic Co. v. Duke

Power Co., 553 F.2d 53, 56 (10th Cir. 1977). Davenport’s claim against Arnold

Faller rested on merely a series of conclusory statements, lacking in the factual

matter necessary to state a plausible claim, and was properly dismissed. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Similarly, the district court did not

abuse its discretion in denying Davenport’s numerous and substantively baseless

procedural motions.

       We also conclude that the district court properly awarded summary

judgment to the other parties on Davenport’s claims. While a fact-intensive case is

not appropriate for summary judgment when there are genuine factual issues,

Davenport did not present evidence of any such issues necessary to defeat a motion

for summary judgment. We have previously held that where the “factual context”


                                         -5-
of a case “makes the non-moving party’s claim implausible, that party must come

forward with more persuasive evidence than would otherwise be necessary” to

defeat summary judgment. Cal. Architectural Bldg. Prods., Inc. v. Franciscan

Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Davenport’s serious

claims—that the other beneficiaries used undue influence to negate an oral

agreement for her to get all of LeFeber’s assets, and indeed killed the decedent to

gain their objectives—required more than the assertions of an interested party to

proceed, especially since it is undisputed that the alleged oral agreement was never

recorded, witnessed or reduced to a signed writing. Given this factual context,

Davenport had to produce real evidence of a dispute; instead, her evidence consists

of speculative assertions in uncorroborated, self-serving affidavits.

      Turning to the district court’s award of attorney fees and costs, we affirm the

award of $6,142.53 in attorney fees to Scottrade. The district court properly

awarded these fees pursuant to federal interpleader law. See Michelman v. Lincoln

Nat’l Life Ins. Co., 685 F.3d 887, 898 (9th Cir. 2012). Davenport was afforded an

opportunity to object to the amount of fees requested by Scottrade in her response

to Scottrade’s motion to dismiss, and the district court properly concluded that the

amount requested by Scottrade was reasonable.




                                         -6-
      Our conclusion is different, however, with respect to the fees awarded to

Arnold Faller, Patricia Faller, and Shane. Although the district court properly

recognized that it had the authority to award these fees, Davenport should have

explicitly been given the opportunity to object to the amount of fees requested by

the parties. Therefore, we vacate these awards and remand with instructions to

allow Davenport to file objections as to the award amounts only.

      Finally, on the issue of prejudgment interest raised by Shane’s cross-appeal,

we conclude that the district court did not abuse its discretion by denying

prejudgment interest. The relevant Montana law requires an underlying monetary

obligation between parties before an award of prejudgment interest is proper.

Mont. Petroleum Tank Release Comp. Bd. v. Crumleys, Inc., 174 P.3d 948, 965

(Mont. 2008). No such obligation exists here.

      AFFIRMED in part, VACATED in part and REMANDED with

instructions.




                                         -7-
