                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 17 2013

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



                            FOR THE NINTH CIRCUIT


HOLLY JOHNSTON,                                  No. 12-35030

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00540-PK

  v.
                                                 MEMORANDUM*
KIMBERLY-CLARK GLOBAL SALES,
LLC, a Delaware foreign limited liability
company,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                       Argued and Submitted July 11, 2013
                               Portland, Oregon

Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.

       Holly Johnston appeals the district court’s order granting summary judgment

in favor of Kimberly-Clark Global Sales, LLC in her diversity action alleging

intentional interference with economic relations under Oregon law. We review a



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
grant of summary judgment de novo, viewing the evidence in the light most

favorable to the non-moving party to determine whether any genuine issues of

material fact remain. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.

2003). We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand.

       Oregon law governs this dispute. To establish a claim for intentional

interference with economic relations in Oregon, a plaintiff must prove: (1) the

existence of a professional or business relationship; (2) intentional interference

with that relationship; (3) by a third party; (4) accomplished through improper

means or for an improper purpose; (5) a causal effect between the interference and

damage to the economic relationship; and (6) damages. McGanty v. Staudenraus,

901 P.2d 841, 844 (Or. 1995). On appeal, the parties dispute whether Johnston

was required to produce admissible evidence that Kimberly-Clark was solely
motivated by an “improper purpose.” In Oregon:

      a plaintiff does not have to present evidence[,] other than its evidence
      of an improper motive[,] in order to prove that a defendant was not
      motivated in part by proper objectives. The fact finder may infer from
      the existence of an improper motive that it was the defendant’s only
      motive. Once there is evidence of both proper and improper motives,
      the trier of fact may find that the motives were all proper, all improper
      or a mixture of both.

 Harm v. Cent. Life Assurance Co., 813 P.2d 1103, 1106 (Or. Ct. App. 1991).




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      Kimberly-Clark presented evidence that it was motivated by legitimate

purposes, but Johnston offered some evidence that Kimberly-Clark acted with a

retaliatory purpose. See Boers v. Payline Sys., Inc., 918 P.2d 432, 436–37 (Or. Ct.

App. 1996) (retaliatory motive is improper). Thus, a genuine issue of material fact

remains regarding whether Kimberly-Clark acted with an improper purpose. See

Harm, 813 P.2d at 1106.

      Kimberly-Clark argues that Welch v. Bancorp Management Advisors, 675

P.2d 172, 178 (Or. 1983), supports its position. Welch recognized that where an

“agent acts within the scope of his authority and with the intent to benefit the

principal,” the “agent is not liable to a third party for intentional interference with

contract even if the agent acts with ‘mixed motives’ to benefit himself or another

principal as well.” Welch, 675 P.2d at 217–18. Welch is not dispositive because it

addresses when an agent who induces a corporation to breach a contract is liable to

the other party to the contract for intentional interference with economic relations.

Here, Johnston does not allege that Kappes induced Kimberly-Clark to breach a

contract with her. Rather, Johnston alleges that Kappes interfered with the

economic relationship that existed between Johnston and her employer, Banner &

Witcoff.

      We also reject Kimberly-Clark’s argument that Johnston failed to raise an


                                           3
issue of material fact regarding the intentional interference and causation elements.

The record is sufficient to allow a reasonable juror to decide that Kimberly-Clark

“intentionally interfered” with Johnston’s economic relationship and that a “causal

effect” existed between the “interference and damage to the economic

relationship.” McGanty, 901 P.2d at 844. Construing the facts in the light most

favorable to Johnston, circumstantial evidence is sufficient for Johnston’s

complaint to survive summary judgment. Accordingly, we reverse and remand for

further proceedings.

      REVERSED and REMANDED.




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