                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 08 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KOUICHI TANIGUCHI,                               No. 09-15212

              Plaintiff - Appellant,             D.C. No. 1:08-cv-00008

  v.
                                                 MEMORANDUM *
KAN PACIFIC SAIPAN, LTD., doing
business as Marianas Resort and Spa,

              Defendant - Appellee.



                   Appeal from the United States District Court
                  for the District of the Northern Mariana Islands
                  Alex R. Munson, Chief District Judge, Presiding

                      Argued and Submitted October 14, 2010
                                Honolulu, Hawaii

Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.

       Appellant Kouichi Taniguchi (Taniguchi) fell through a deck on Kan Pacific

Saipan, Ltd.’s (Kan Pacific) premises. Taniguchi challenges the district court’s

grant of summary judgment in favor of Kan Pacific. Taniguchi also challenges the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
district court’s failure to apply res ipsa loquitur and to consider Kan Pacific’s

alleged spoilation of evidence1.




1.    Taniguchi contends that the district court erred in granting summary

judgment in favor of Kan Pacific. We review de novo entry of summary judgment

with all reasonable inferences viewed in the light most favorable to the non-

moving party. See Villiarimo v. Ahoha Island Air, Inc., 281 F.3d 1054, 1061 (9th

Cir. 2002). We then decide if any genuine issue of material fact exists, and if the

district court “correctly applied the relevant substantive law.” Id. (citation

omitted). To avoid summary judgment, a party must provide evidence, going

beyond the pleadings and mere assertions, with specific facts to establish a genuine

issue of material fact. See Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997

(9th Cir. 2001).

       Taniguchi did not provide sufficient evidence to raise a material issue of

fact in view of the declaration of Kan Pacific’s agent regarding Kan Pacific’s lack

of negligence. Therefore, we affirm the district court’s decision granting summary

judgment in favor of Kan Pacific. Id.



      1
         Taniguchi’s challenge to the district court’s award of costs to Kan Pacific
is resolved in a separate opinion filed contemporaneously with this disposition.

                                           2
2.    Taniguchi contends that the district court should have addressed the issue of

whether Kan Pacific engaged in spoilation of evidence, which was raised in a

motion for sanctions. However, the district court dismissed all pending motions as

moot after granting summary judgment in favor of Kan Pacific. We have held that

a district court has discretion to declare pending motions moot when a party cannot

“provide any basis or factual support for his assertions . . .” Margolis v. Ryan, 140

F.3d 850, 854 (9th Cir. 1998). In this case, Taniguchi cannot “provide any basis or

factual support for his assertions,” id., because Kan Pacific destroyed the damaged

wood from the deck in the ordinary course of business. See United States v.

$40,955.00 in United States Currency, 554 F.3d 752, 758 (9th Cir. 2009)

(explaining that no spoilation occurs when the accused party destroys or disposes

of evidence in the ordinary course of business).




3.    Taniguchi contends that the district court did not consider the doctrine of res

ipsa loquitur when ruling on the summary judgment motion and that he was

entitled to have a res ipsa loquitur charge given to the jury. However, Taniguchi

did not advance this theory in the district court.

       We generally will not review an issue initially raised on appeal. See United

States v. Castro, 887 F.2d 988, 996 (9th Cir. 1989). Neither will we re-frame the


                                            3
cause of action and essentially review a different cause of action than that decided

by the district court. See Robb v. Bethel School Dist. #403, 308 F.3d 1047, 1052 n.

4 (9th Cir. 2002).

      AFFIRMED.




                                          4
